Emmerson & Extended Determinate Sentences: A New Benchmark for Serial Sexual Assaults and Exposure Offences

1. Introduction

R v Emmerson ([2025] EWCA Crim 756) is an Attorney-General’s Reference in which the Court of Appeal (Criminal Division) revisited a sentencing exercise for a serial sex offender who targeted young women and schoolgirls. The Solicitor-General contended that the original sentence of 4½ years’ imprisonment:

• failed to reflect the multiplicity and gravity of the assaults and exposure offences; and
• omitted an Extended Determinate Sentence (EDS) notwithstanding clear evidence of “dangerousness”.

The Court of Appeal allowed the reference, quashed the original sentences, and substituted:

• a custodial term of 7 years on each sexual assault count;
• concurrent 2-year terms on each exposure count; and
• a 3-year extension period, producing an overall EDS of 10 years on each sexual assault count (the statutory maximum).

Beyond rectifying leniency, the judgment crystallises key principles on:

1. when category A1 of the Sentencing Council’s guideline for sexual assault is triggered and how multiplicity warrants uplift;
2. the interaction between the “totality” principle and concurrent/consecutive structuring; and
3. the test for imposing an EDS where the statutory maximum constrains the court.

2. Summary of the Judgment

LJ Edis, giving the judgment of the court, held that:

• The trial judge’s 4-year sentences for each sexual assault merely replicated the starting point for a single A1 assault; they failed to incorporate aggravating features (planning, targeting, violence) and the multiplicity of victims.
• The 9-month and 6-month sentences for exposure offences were manifestly inadequate given the statutory 2-year maximum and the offender’s previous convictions.
• The offender was plainly “dangerous” under Criminal Justice Act 2003, s. 226A(2); public protection demanded an EDS.
• Because sexual assault carries a 10-year maximum, the court fixed: custodial term = 7 years; extension period = 3 years (yielding the statutory maximum 10 years).

3. Detailed Analysis

3.1 Precedents & Authorities Cited

• Criminal Justice Act 1988, s. 36 (Attorney-General’s references for unduly lenient sentences) – jurisdictional gateway.
• Sentencing Council Guideline: “Sexual Offences – Sexual Assault” – category matrix (harm × culpability) and aggravation.
• Criminal Justice Act 2003, ss. 224–226A – “dangerous offenders” and Extended Determinate Sentences.
• Sexual Offences (Amendment) Act 1992 – lifelong anonymity for victims.

Although no earlier case law is expressly quoted, the court’s approach draws on a line of AG References (e.g., Attorney-General’s Ref Nos 14 & 15 of 2017 and R v Burinskas [2014] EWCA Crim 2549) in which failure to apply guideline uplifts or to impose an EDS rendered sentences unduly lenient.

3.2 The Court’s Legal Reasoning

1. Guideline Category (A1) Correctness.
   Violence (pushing victims to the floor, groping over clothing), psychological harm (trauma evidenced in impact statements), and deliberate targeting in an underpass amounted to “significant” harm and “high” culpability (planning + targeting). That squarely engages Category A1: starting point = 4 years, range = 3–7 years for a single offence.
2. Multiplicity & Totality.
   Five assaults and seven exposure counts, against 11 different victims, called for an aggregate sentence exceeding that for a single offence. The trial judge’s failure to move beyond the 4-year starting point ignored:
   • the principle that consecutive or inflated concurrent terms must reflect overall criminality;
   • the aggravating effect of repetitive offending and escalation (exposure → contact assault).
3. Exposure Offences.
   Maximum per count = 2 years (Sexual Offences Act 2003, s. 66). Given prior exposure convictions, sentences approaching that ceiling were appropriate (concurrent 2-year terms).
4. Dangerousness & EDS.
   Under CJA 2003 s. 226A, an EDS is mandatory where: (a) the offender is “dangerous” (significant risk of serious harm); and (b) the offence carries >2-year maximum. Key factors:
   • Escalation to contact offences;
   • Persistent denial evidencing lack of insight;
   • Pre-sentence report explicitly finding high risk.
   Where the statutory maximum (10 years) caps the EDS, the court must apportion between the custodial term and extension period. LJ Edis fixed 7 years custody + 3 years licence.

3.3 Impact of the Decision

Emmerson is likely to influence future sentencing in three distinct ways:

1. Benchmarking Serial Sexual Assaults.
   Courts will treat 4 years as a starting point and expect an uplift where multiple A1 assaults co-exist, especially with prior exposure convictions.
2. Exposure as a Risk Indicator.
   The judgment emphasises exposure offences as potential precursors to contact sexual violence, warranting stern sentences and informing dangerousness assessments.
3. Use of EDS at the Statutory Ceiling.
   Even where the offence maximum is 10 years, an EDS may be imposed up to that limit; judges should structure sentences to combine a substantial custodial element with an extension on licence for public protection.

4. Complex Concepts Simplified

• Unduly Lenient Sentence (ULS) – A sentence so low that it falls outside the range a judge could reasonably impose. The Attorney-General (or Solicitor-General) may refer it to the Court of Appeal.
• Category A1 (Sexual Assault Guideline) – Highest harm (Category A) plus highest culpability (Level 1). Starting point 4 years, range 3-7 years.
• Totality Principle – When sentencing for multiple offences, the court must ensure the aggregate sentence is just and proportionate to the offender’s overall criminality.
• Extended Determinate Sentence (EDS) – A sentence comprising:
  • Custodial term (time in prison, release normally at ⅔).
  • Extension period on licence (additional supervision in the community).
  Imposed on “dangerous” offenders where necessary for public protection.
• Dangerous Offender – Defined by CJA 2003 s. 229: an offender who poses a significant risk of serious harm to the public.

5. Conclusion

R v Emmerson reinforces that serial sexual offending—especially where exposure escalates to violent contact assaults—demands sentences near the top of the guideline range, with explicit uplifts for multiplicity and prior history. It clarifies:

• How guideline starting points must be distinguished from final sentences when multiple A1 offences are present;
• That exposure offences, though carrying a lower maximum, can merit the statutory maximum where aggravating factors exist;
• The readiness of the Court of Appeal to impose an Extended Determinate Sentence, even at the statutory ceiling, when dangerousness is obvious.

Practitioners should now treat Emmerson as a leading authority on calibrating sentences for repeated sexual assaults and exposures, ensuring both punishment and public protection remain at the forefront of sentencing decisions.