Reflecting Multiple Child Victims and Future Risk in Sexual Sentencing: Commentary on R v Ellis [2025] EWCA Crim 1498

Reflecting Multiple Child Victims and Future Risk in Sexual Sentencing: Commentary on R v Ellis [2025] EWCA Crim 1498

1. Introduction

This commentary examines the decision of the Court of Appeal (Criminal Division) in R v Ellis [2025] EWCA Crim 1498, an Attorney General’s Reference concerning an unduly lenient sentence for extremely serious intra-familial sexual offences against very young children.

The case establishes and clearly reinforces two central sentencing principles:

  • where there are serious sexual offences against multiple child victims, the total sentence must clearly reflect the additional criminality and the fact that more than one life has been irreparably harmed; a simple “starting point” sentence on one count with concurrent terms on others will often be inadequate; and
  • when assessing whether an offender is “dangerous” for the purposes of the statutory sentencing regime, the risk is to “members of the public” in a wide sense, which includes future children with whom the offender may come into contact, not merely the specific children already known to be victims.

The case also highlights the practical importance of obtaining a pre‑sentence report in serious sexual cases where dangerousness is, or should be, in issue, and it clarifies the relationship between:

  • the Sentencing Council guidelines (culpability/harm categories and starting points),
  • the principle of totality, and
  • the dangerousness provisions leading to extended sentences and special sentences for “offenders of particular concern”.

Throughout, the statutory anonymity provisions under the Sexual Offences (Amendment) Act 1992 apply. The Court expressly declined to lift or waive the prohibition on identification of the child victims, who are therefore referred to only as A and B. This commentary follows the same approach.

2. Factual and Procedural Background

2.1 The offences

The offender was the biological father of two very young boys, A and B. He had a longstanding history of drug and alcohol addiction and was separated from their mother. Despite these difficulties, he was previously regarded as a “good father” subject to the mother’s condition that he undergo drug testing as a precondition for contact.

In early 2022, contact between the offender and the children appeared to be rebuilding successfully and had progressed to overnight stays. At that point:

  • A was aged 3;
  • B was aged 5.

In August 2022, during a contact visit, the children were returned early, distressed, and disclosed to their mother that they had been sexually abused. In summary:

  • A alleged that his father had anally raped him (rape of a child under 13).
  • B alleged that his father had digitally penetrated his anus (assault of a child under 13 by penetration).

At that stage:

  • A was aged 4;
  • B remained aged 5.

A forensic paediatric physician identified anal injuries in both boys consistent with their accounts of sexual abuse. The offender denied all sexual misconduct in interview and at trial and continues to do so. Although he had previous convictions, none were for sexual offences and none were remotely comparable in seriousness to the current conduct. He was 35 at the time of sentence.

2.2 The original sentencing exercise

The offender was tried before Ms Recorder Penelope Stanistreet‑Keen in the Crown Court at Nottingham. Following conviction:

  • Count 1 – rape of a child under 13 – 13 years’ imprisonment plus a 1-year additional licence period;
  • Count 2 – assault of a child under 13 by penetration – 11 years’ imprisonment, concurrent, plus a 1-year additional licence period.

The Recorder had presided over both the final trial and an earlier trial that had collapsed. She sentenced without a pre‑sentence report, which the Court of Appeal later held she should have obtained, at least to address dangerousness.

A powerful victim personal statement from the children’s mother described profound and likely lifelong consequences for both boys and for the family: behavioural change, sibling conflict, bed‑soiling, school problems, nightmares, heightened anxiety, psychosomatic symptoms, severe guilt in B for not protecting A, and overwhelming grief and guilt on the mother’s part. Both children are in ongoing counselling.

2.3 Guideline categorisation and aggravation/mitigation

There was no dispute about guideline categorisation under the relevant Sentencing Council sexual offences guideline:

  • Culpability: Category A – reflecting a gross breach of trust (a father abusing very young children entrusted to his care).
  • Harm: Category 2 – due to substantial psychological harm and the extreme vulnerability of the victims, given their very young age and family circumstances.

The Recorder identified key aggravating features:

  • each offence was committed in the presence of the other child;
  • the abuse occurred in the children’s own homes, a place where they should have felt safest;
  • the offending occurred when the offender had relapsed into serious drug abuse and was under the influence of drugs.

Mitigation was minimal: the offender had no previous sexual convictions or convictions of comparable seriousness.

On this basis, the guideline starting points and category ranges were:

  • Count 1 (rape of a child under 13):
    • Starting point: 13 years;
    • Range: 11–17 years.
  • Count 2 (assault by penetration of a child under 13):
    • Starting point: 11 years;
    • Range: 7–15 years.

2.4 Dangerousness and “offender of particular concern”

The Recorder addressed the statutory question of dangerousness – whether the offender posed a significant risk of serious harm to members of the public – but concluded that he did not. She reasoned that:

“There is no evidence before me that he does pose a risk in that way; the risk is to his own children who were present in the flat.”

She considered that a restraining order in relation to A and B was sufficient to manage the risk. Crucially, she did not consider the risk the offender might pose to other children with whom he might come into contact in future – for example in new relationships.

After sentencing, and following clarification, the Recorder accepted that the offender was an “offender of particular concern” and imposed a 1-year additional licence period on each count under that regime, producing an overall extended term of 14 years (13-year custodial term plus 1-year extension).

2.5 The Attorney General’s reference

His Majesty’s Attorney General referred the sentence to the Court of Appeal as unduly lenient, advancing two main arguments:

  1. The Recorder had failed to reflect the additional criminality of count 2. While 13 years on count 1 could be justified if that count were viewed alone, the presence of a second, separate victim required either:
    • an uplift to the sentence on count 1, or
    • the imposition of consecutive sentences.
  2. The court should make its own finding of dangerousness and impose an extended sentence, in light of a pre‑appeal probation report assessing the offender as presenting a high risk of serious harm to his children and to any other children in future relationships.

For the offender, Mr James‑Moore argued that the overall sentence of 14 years was within the proper range and that any risk could be adequately managed by a restraining order and registration requirements, with any risk to other children being “tenuous”.

3. Summary of the Court of Appeal’s Decision

The Court of Appeal held as follows:

  • The aggregate custodial term of 13 years for both offences was not merely lenient but unduly lenient, because it failed to recognise the seriousness of the second offence against a second child.
  • Although 13 years on count 1 alone was arguably within the range open to the Recorder, she had erred by not increasing that sentence or imposing a consecutive term to mark count 2.
  • On the facts and on the basis of the pre‑appeal report, the offender posed a significant risk of serious harm to young children generally, not limited to his own children. A finding of dangerousness was therefore appropriate, and a longer extended licence period (4 years) was required to protect the public.
  • The court gave leave, quashed the original sentence on count 1, and substituted an extended sentence of 21 years, comprising:
    • a custodial term of 17 years, and
    • a 4-year extended licence period.
  • The sentence on count 2 (11 years’ imprisonment concurrent, with the existing additional licence arrangements) was left unchanged.
  • The court emphasised that a total custodial term “significantly in excess of 17 years” would have been open to the Recorder without risk of being considered excessive.

In short, the Court both raised the total sentence and re‑framed its structure, so that:

  • the seriousness of offending against two separate children was clearly reflected, and
  • an extended period under licence was imposed to manage the clear, ongoing risk to other children beyond the immediate victims.

4. Legal Framework

4.1 Attorney General’s reference and “unduly lenient” sentences

The Attorney General’s power to refer sentences to the Court of Appeal as “unduly lenient” is a statutory mechanism (now governed under the relevant provisions of criminal justice legislation) that allows re‑sentencing in certain serious cases where the original sentence falls outside the range of sentences that a judge, applying proper sentencing principles, could reasonably impose.

The key points are:

  • The test is not whether the Court of Appeal would have passed a higher sentence itself, but whether the sentence was “unduly” – that is, manifestly – lenient.
  • The Court of Appeal normally affords a wide margin of discretion to the sentencing judge, particularly where that judge has presided over the trial.
  • A sentence may nevertheless be unduly lenient where:
    • important aggravating features are not reflected in the overall sentence,
    • the principle of totality is misapplied, or
    • the statutory regime (e.g. dangerousness) is misapplied.

4.2 Sentencing Council guidelines and totality

For sexual offences, the Sentencing Council guideline divides cases by:

  • culpability (A–C), and
  • harm (1–3),

and prescribes a starting point and sentence range for each offence. The judge must then consider aggravating and mitigating factors and adjust from the starting point accordingly.

Where there are multiple offences, the principle of totality requires the sentencer to ensure that the overall sentence:

  • is just and proportionate to the totality of the offending;
  • properly reflects the number of victims and separate episodes of offending;
  • may be achieved either by:
    • increasing the sentence on a “lead” offence to reflect overall criminality, or
    • imposing consecutive sentences in appropriate cases.

4.3 Dangerousness and extended sentences

Under the “dangerousness” provisions (now consolidated in the Sentencing Code), the court must consider whether the offender presents a significant risk of serious harm to members of the public by the commission of further offences.

Where such risk is found and the statutory conditions are met, the court may (or must, depending on the regime) impose:

  • an extended determinate sentence (EDS), comprising:
    • a custodial term, and
    • an extended licence period, during which the offender remains subject to recall and supervision.
  • or (in some cases) a life sentence, where justified by seriousness and necessary for protection of the public.

Separately, for certain listed sexual (and terrorism) offences the court may be required to impose a special sentence for an “offender of particular concern” (SOPC). This typically involves:

  • a custodial term; and
  • a mandatory additional licence period (often at least 1 year).

The present case engages both ideas:

  • the Recorder initially treated the offender as an SOPC, giving an additional one-year licence; and
  • the Court of Appeal then went further, expressly finding dangerousness and imposing a longer extended sentence (17 years’ custody plus 4 years’ licence).

5. Detailed Analysis of the Judgment

5.1 Unduly lenient sentence and the treatment of multiple victims

5.1.1 Count 1 in isolation vs overall criminality

The Court approached the sentencing exercise in stages. First, it considered whether the sentence for count 1 alone – 13 years’ custody – was outside the reasonable range. It concluded:

  • Many judges would have increased that sentence above 13 years to reflect the heinous nature of the offence (anal rape of a very young child by his father, accompanied by grave psychological harm).
  • However, the Recorder’s decision not to move up or down from the guideline starting point of 13 years fell within the discretion reasonably open to her for that count alone.

This reflects the appellate court’s usual reluctance to interfere where a sentencing judge has chosen a sentence that is within the guideline range and justifiable on the facts.

5.1.2 Failure to reflect the second victim and second offence

The difficulty arose because the Recorder effectively:

  • imposed the starting-point sentence on count 1; and
  • made the almost equally serious sentence on count 2 wholly concurrent, without any uplift to count 1 and without using a consecutive element.

As the Court pointed out:

  • count 2 was itself an extremely grave sexual offence against a very young child,
  • the guideline starting point for count 2 (11 years) and its range (7–15 years) demonstrate its seriousness,
  • it was committed against a different victim, at a very young age, in the presence of his sibling, in similar circumstances.

The Court stressed:

“Quite apart from being a separate and discrete offence, it was committed against a second victim, so that the lives of two children have been utterly blighted, not one.”

On any rational application of the totality principle:

  • either the sentence on count 1 had to be increased to reflect the existence and seriousness of count 2; or
  • there had to be at least a partially consecutive component for count 2.

The Recorder did neither. She stated that she had taken “totality” into account but left count 1 at the starting point and ran count 2 entirely concurrently. The Court found that this failed to recognise the additional criminality and the impact on a second child.

Accordingly, it held that the aggregate custodial sentence of 13 years was “not merely lenient but unduly lenient and well outside the range of aggregate sentences that was properly open to the Recorder”.

5.1.3 Appropriate aggregate sentence

The Attorney General invited the Court to conclude that a 17‑year custodial term (overall) was the least appropriate aggregate sentence, effectively by adding 4 years to count 1 to reflect count 2.

The Court agreed that 17 years’ custody was the minimum appropriate aggregate custodial term for the two offences together, but made two important qualifications:

  • it treated 17 years as the overall sentence required for the totality of the criminality, not mechanically as “13 + 4”;
  • it expressly noted that the Recorder could have imposed an aggregate sentence with a custodial element “significantly in excess of 17 years” without any risk of being seen as excessive.

This is a clear signal to sentencing judges that, in cases of repeated grave sexual offending against multiple very young children, aggregate sentences well beyond the guideline starting points for individual counts may be both appropriate and necessary.

5.2 Dangerousness and the scope of “members of the public”

5.2.1 Error in dangerousness assessment and absence of report

The Court’s second major criticism concerned the Recorder’s handling of dangerousness:

  • She did not obtain a pre‑sentence report, even though serious sexual offences of this kind ought to trigger consideration of dangerousness.
  • She concluded that there was no evidence of significant risk to “members of the public” and that the risk was only to the offender’s own children.
  • She treated a restraining order in relation to A and B as sufficient, thereby implicitly assuming that no wider category of potential victims existed.

By contrast, the Court of Appeal had the benefit of a detailed probation (pre‑appeal) report, which concluded that the offender presented a high risk of serious harm to:

  • his own children, and
  • any other children with whom he might come into contact in any future relationship.

On that basis, the Court found that there was evidence of a significant risk of serious harm extending to the wider public, namely other children.

5.2.2 “Members of the public” includes future children

A key conceptual point in the judgment is the Court’s explanation of who can count as “members of the public” in the dangerousness test. It held that the Recorder erred by treating the risk as confined to A and B. Instead:

  • A and B are not the only children who may be at risk;
  • the offender will be released and may form relationships with women who have young children or with whom he may have further children;
  • the “public” for statutory purposes includes these potential future victims, even though they are currently unidentified.

The Court stated:

“In our judgment, in this case, based upon the facts of these offences and the contents of the pre-appeal report, there is a significant on‑going risk of serious harm caused to any young children with whom he comes into contact.”

It accepted that the probability of recidivism may not be precisely quantifiable, but emphasised that:

  • what matters is the presence of a significant risk, and
  • if that risk materialises, the consequences for any future victim would “in all probability be extremely severe”.

This illustrates a core feature of the dangerousness regime: the court must consider not only how likely further serious harm is, but also how grave the harm would be if it occurs.

5.2.3 Why an extended licence was required

Having found dangerousness, the Court then addressed what protective measures were necessary. It held that the risk could not be sufficiently managed by:

  • the mere passage of time;
  • the operation of the Sex Offenders Register; or
  • restraining orders in relation to the known victims alone.

Instead, it concluded that a 4‑year extended licence period was “called for”. Practically, this means:

  • the offender will be under statutory supervision and subject to recall for a longer period after release;
  • risk assessment and management with respect to any contact with children can continue well beyond his release from custody;
  • public protection is enhanced at the point where the risk of forming new relationships (and thus access to new children) is at its highest.

5.3 The revised sentencing structure

5.3.1 Custodial term

The Court ultimately imposed an extended sentence of 21 years on count 1, comprising:

  • 17 years’ custody; and
  • 4 years’ extended licence.

This 17‑year custodial element reflects at least:

  • the gravity of the rape of a child under 13 (count 1), including the gross breach of trust and substantial harm; and
  • an uplift to account for the separate and serious sexual assault on B (count 2), a second, discrete child victim.

While the Court accepted the Attorney General’s figure of 17 years as the minimum proper aggregate custodial term, it carefully emphasised that substantially higher terms would have been legitimate. In doing so, it sets a strong benchmark for similar cases.

5.3.2 Concurrent sentence on count 2

The Court left the sentence on count 2 as previously imposed: 11 years’ imprisonment concurrent, with the existing licence arrangements. In practice:

  • the effective custodial term is governed by the longer sentence on count 1 (17 years);
  • the effective licence period is governed by the 4‑year extension on count 1 (being longer than the 1‑year extension on count 2).

This approach avoids unnecessary complexity while ensuring that:

  • the overall sentence reflects the totality of the offending, and
  • the extended licence is set at a level commensurate with the assessed risk.

6. Complex Legal Concepts Simplified

6.1 Unduly lenient sentence

A sentence is “unduly lenient” if it falls well below the level which any reasonable judge, properly applying the law and guidelines, could have imposed. It is not enough for the Court of Appeal to think it might have imposed a somewhat higher sentence; the sentence must be outside the permissible range of discretion.

6.2 Principle of totality

When sentencing for more than one offence, the judge must consider the totality – the overall sentence must:

  • reflect all the offending and all the victims, and
  • not be unduly harsh or unduly lenient overall.

This may be done by:

  • making one sentence (the “lead offence”) longer to reflect all the conduct, or
  • running some sentences consecutively (one after another).

6.3 Dangerousness

“Dangerousness” in this context is a legal term: it means there is a significant risk that the offender will cause serious harm to members of the public through future offences. “Serious harm” usually means death or serious physical or psychological injury.

To decide this, the court looks at:

  • the current offences and how serious they are;
  • any pattern of similar behaviour in the past (relevant previous convictions);
  • expert assessments (such as probation or psychiatric reports);
  • the nature of the risk – particularly how grave the harm would be if the offender reoffends.

6.4 Extended sentence and extended licence

An extended sentence (sometimes called an extended determinate sentence) is imposed where an offender is found to be dangerous. It has two parts:

  • a custodial term – the principal time the offender must serve in prison; and
  • an extended licence period – an extra period after release during which the offender:
    • remains under supervision;
    • must comply with licence conditions; and
    • can be recalled to prison if he breaches the licence or reoffends.

The extended licence is specifically designed to protect the public by allowing closer monitoring for longer than in an ordinary determinate sentence.

6.5 Offender of particular concern

The term “offender of particular concern” applies to certain serious sexual (and terrorism) offences. A special sentencing regime can apply, typically requiring:

  • a custodial term, and
  • an additional licence period of at least a certain length (often at least 1 year).

In Ellis, the Recorder initially imposed such an additional 1‑year licence on each count. The Court then went further, imposing a longer extended licence in light of a positive finding of dangerousness.

6.6 Anonymity under the Sexual Offences (Amendment) Act 1992

Under this Act, where a sexual offence is alleged to have been committed against a person, no matter may be published that is likely to identify that person as the victim during his or her lifetime, unless a lawful waiver or court order lifts the restriction.

The Court in Ellis expressly confirmed that the prohibition is not lifted. The children must therefore remain anonymous; this is why they are referred to only as A and B, and why no identifying detail is included beyond what appears in the judgment.

7. Impact and Significance of the Judgment

7.1 Sentencing for multiple serious sexual offences against children

The judgment provides strong guidance for sentencing courts in analogous cases:

  • Where there are two or more child victims, the total sentence must plainly reflect that more than one child’s life has been devastated.
  • Simply applying the guideline starting point for one count – even for an offence as grave as child rape – and making other serious counts concurrent, without uplift or consecutive elements, will often be insufficient.
  • This is particularly true where each offence, viewed in isolation, would itself justify a long term of imprisonment.

Sentencers are effectively reminded that the presence of multiple very young victims is a major aggravating factor which must be reflected in the overall length of the custodial term, not merely by concurrent sentences sitting within guideline ranges.

7.2 Dangerousness and risk to future children

The case is equally important on the concept of dangerousness:

  • It confirms that “members of the public” in the statutory test is a broad class, including children the offender has not yet met but may meet after release.
  • It underscores that serious intra‑familial sexual offending against very young children will often be strong evidence of a risk to other children, not merely the specific children abused.
  • It emphasises the importance of professional risk assessment (through pre‑sentence reports) in such cases; failing to obtain such a report may be a significant error.

As a result, practitioners can expect stronger focus on:

  • obtaining detailed pre‑sentence assessments in serious child sexual cases, and
  • arguing more regularly for extended sentences where there is a realistic prospect of the offender entering new family structures with access to children.

7.3 Practical implications for advocates and judges

For prosecutors and the Attorney General:

  • Ellis is a template for identifying when failure to reflect separate victims in the total sentence may justify an unduly lenient reference.
  • It supports the argument that, in very serious child sexual cases, a substantial uplift on the guideline starting point (and/or consecutive sentences) will be necessary.

For defence practitioners:

  • The judgment shows the limits of an argument that risk is confined to known children and can be managed by restraining orders alone.
  • It highlights the need to engage substantively with any pre‑sentence report on risk and, where possible, to adduce evidence of risk‑reduction factors (e.g., therapy, insight, relapse prevention).

For judges:

  • The case is a reminder that in serious sexual cases, especially involving very young children and familial abuse, the court should almost always obtain a pre‑sentence report where dangerousness is in contemplation.
  • They must expressly consider the risk to future children, not just to those named in the indictment.
  • They should be prepared, in appropriate cases, to impose extended sentences with meaningful licence periods, not just the minimum add‑ons under SOPC provisions.

8. Conclusion

R v Ellis [2025] EWCA Crim 1498 is a significant sentencing authority in the field of child sexual offences. It does not introduce a novel statutory test, but it gives sharp practical content to existing principles in two ways.

First, it makes clear that, in cases of multiple very young victims, the sentencing exercise must visibly reflect the fact that more than one child has suffered grave harm. Merely applying guideline starting points with concurrent sentences is likely to be inadequate and, in egregious cases, may be unduly lenient.

Secondly, it clarifies that the statutory concept of dangerousness and risk to “members of the public” includes the risk to future, as yet unidentified children, particularly where the nature of the current offending demonstrates a capacity to cause devastating harm. The decision underscores the need for extended sentences with substantial licence periods in cases where such risk is present.

In practical terms, Ellis stands as a strong statement by the Court of Appeal that:

  • serious intra‑familial sexual abuse of very young children almost invariably warrants very long custodial terms, and
  • courts must take a forward‑looking, protective approach to risk, using extended sentences where necessary to protect other children who may come into the offender’s orbit in the future.

The case will therefore be an important reference point in future sentencing and unduly lenient appeals involving grave sexual offences against children, particularly where there are multiple victims and concerns about risk to children beyond the immediate family.

Case Details

Year: 2025
Court: England and Wales Court of Appeal (Criminal Division)

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