Green v R ([2025] EWCA Crim 462): Suspension of Custodial Sentences to Prioritize Rehabilitation in Category B2 Sexual Offending

Introduction

This case arises from the appeal by Mr Green (“the appellant”) against a 16-month immediate custodial sentence imposed by the Crown Court at Leeds for sexual assault of a minor (a 15-year-old female, anonymised as “C1”) contrary to section 3 of the Sexual Offences Act 2003. The appellant pleaded guilty to Category B2 offending under the Sexual Offences Definitive Guideline. He argued that the starting point was too high, that mitigation (including his learning disability, mental disorder, remorse, and prospect of rehabilitation) was not properly weighed, and that an immediate custodial sentence was unjustified when a suspended sentence with targeted interventions might better balance punishment, public protection, and rehabilitation. The Court of Appeal, Criminal Division (Bryan LJ, with Yip and Pepper JJ) convened on 28 March 2025 to consider whether the original sentence was manifestly excessive or wrongly deprived the appellant of rehabilitative opportunities.

Summary of the Judgment

The Court of Appeal:

Accepted the categorisation of the offence as Category B2 (sustained sexual touching of a child, appellant aware of victim’s age and vulnerability).
Held that the sentencing judge was entitled to regard the appellant’s learning disability and mental disorder as not significantly reducing culpability.
Concluded, however, that the judge had not sufficiently evaluated the appellant’s personal history, the risks he posed, and how best to manage them through mandated programmes.
Determined that an immediate custodial sentence precluded timely engagement in sexual offending programmes and alcohol-risk work, thereby undermining rehabilitation and long-term public protection.
Quashed the immediate 16-month term and substituted a 16-month sentence suspended for 24 months, subject to a suite of requirements: accredited sexual offending programme, Rehabilitation Activity Requirement, Alcohol Abstinence Monitoring Requirement, curfew, residence requirement, and supervision.

Analysis

1. Precedents and Statutory Framework Cited

Sexual Offences (Amendment) Act 1992: Mandatory anonymity of the victim during lifetime.
Sexual Offences Act 2003: Defines the offence of sexual assault (section 3) and underpins categorisation in the Sentencing Council’s Definitive Guideline.
Sentencing Council Definitive Guideline – Sexual Offences: Sets Category B2 for persistent sexual touching of a child, with a starting point of 1 year custody and range up to 2 years.
Sentencing Council Imposition Guideline: Provides the framework for assessing whether custody must be immediate or can be suspended, balancing public protection, punishment, and rehabilitation.
Appellate Review Principles: The Court’s power to intervene where a sentence is manifestly excessive or where sentencing discretion miscarried by failing to address key factors (see R v Millberry [1997] 1 Cr App R (S) 329; R v Magill [2005] EWCA Crim 3098).

2. Legal Reasoning

The Court’s reasoning proceeded in two stages:

Culpability and Categorisation
The Court endorsed the Crown Court’s classification of the offending as sustained sexual touching of a vulnerable child (Category B2). It upheld the starting point of 1 year, elevating to 16 months after full credit for the plea, stressing aggravating features: appellant’s intoxication, public nature of the offence, presence of a witness child, and extended duration.
Imposition of Custody versus Suspension
Applying the Imposition Guideline, the Court recognised the necessity to “grapple” with the appellant’s lifelong pattern of sexualised behaviour, learning disability, mixed personality disorder, and high risk of reoffending. The Crown Court’s immediate custody, the Court held, effectively blocked timely access to rehabilitation (sex-offender programme, alcohol intervention). A suspended sentence with strict requirements offered a more coherent plan to:
  a) Protect the public by close supervision, electronic monitoring, curfew, and alcohol abstinence measures.
  b) Facilitate rehabilitation through a 43-day accredited sexual offending programme and 55 days of structured activity.
  c) Balance punishment with proportionality, given no prior custodial history and demonstration of remorse.

3. Potential Impact

This decision signals a nuanced approach to sentencing sexual offences against children, particularly where offenders present complex needs:

Court of Appeal willingness to substitute immediate custody with a suspended term when rehabilitation is demonstrably hindered by imprisonment.
Emphasis on early engagement with accredited programmes and risk-management interventions as integral to public protection.
Guidance to sentencing judges that mental disorders and learning disabilities, though not exculpatory of culpability, constitute critical factors in designing the penological response.
Potential shift in sentencing practice: courts may more frequently tailor community-based orders for certain Category B2 offenders, provided rigorous supervision mitigates risk.

Complex Concepts Simplified

Category B2 Offence: In Sentencing Council terms, sexual offences involving persistent sexual touching of a child who is under 16, where the offender knows the child’s age.
Imposition Guideline: A step in the sentencing process that requires judges to decide whether custody must be immediate or can be suspended, by balancing gravity, risk, and rehabilitative prospects.
Suspended Sentence Order: A custodial sentence that does not take immediate effect, provided the offender complies with specified requirements over a set period.
Rehabilitation Activity Requirement (RAR): Community-based days spent in structured programmes aimed at addressing offending behaviour.
Alcohol Abstinence Monitoring Requirement (AAMR): Regular testing to ensure the offender remains abstinent from alcohol, addressing its role as a disinhibiting factor.

Conclusion

Green v R is a landmark appellate decision clarifying that, for certain Category B2 sexual offences, the optimal balance between punishment, protection, and rehabilitation may lie not in immediate custody but in a carefully crafted suspended sentence order. The Court reaffirmed that sentencing must address the offender’s needs—mental disorder, learning disability, risk factors—and not merely focus on retribution. By mandating accredited sexual offending programmes, alcohol controls, and strict monitoring, the Court ensures public safety while facilitating meaningful intervention. This judgment will guide criminal courts in structuring sentences that both punish wrongdoing and reduce the risk of future harm.