R v Davis [2025] EWCA Crim 916 – Clarifying the Totality Guideline in Unduly Lenient Sentence References for Historic Child-Sex Offences

Introduction

This commentary examines the Court of Appeal (Criminal Division)’s decision in Davis, R. v ([2025] EWCA Crim 916), an appeal brought by the Solicitor-General under the “unduly lenient sentence” (ULS) scheme (s 36 Criminal Justice Act 1988). The case revisits the sentencing framework for historic child-sex offences when (1) the offender has already served (or is serving) a substantial sentence for similar conduct, and (2) the instant offending pre-dates that earlier sentence but only comes to light later. The judgment recalibrates the harm/culpability assessment, displaces an erroneously suspended sentence, and—importantly—lays down practical guidance on how the Totality Guideline should be deployed to avoid either double punishment or an “undeserved bonus” when historic offences surface belatedly.

Summary of the Judgment

• The trial judge had mis-categorised the offence as Category 3B (starting point 2 years), resulting in an 18-month sentence suspended for two years.
• On reference, the Court of Appeal ruled:
  • Harm: A three-year-old victim is “particularly vulnerable due to extreme youth”, mandating Category 2.
  • Culpability: Grooming could not be safely found; therefore culpability remained at B.
• Starting point: 6 years (Category 2B) with a range of 3–9 years.
• Aggravation: ejaculation during the act and the offender’s previous convictions.
• Mitigation: demonstrable rehabilitation, mental-health difficulties, good progress on licence, but no guilty-plea credit.
• Applying the Totality Guideline, the court asked: “Had the 2016 sentence and the instant offence been sentenced together, what just and proportionate overall term would arise?” It concluded that an additional consecutive term of 2½ years was the irreducible minimum.
• The suspended sentence was quashed and replaced with 2 ½ years’ immediate imprisonment.

Analysis

1. Precedents Cited

Green v R [2019] EWCA Crim 196; [2019] 2 Cr App R (S) 16 was pivotal. Green articulated the basic approach where “old” offences are sentenced after a hefty sentence has already been served: the court must sentence the current offence first in isolation, then consider whether and how far to discount to reflect the earlier punishment. The Totality Guideline (Definitive, 2012; updated 2023) codifies that approach. The Court in Davis expressly anchored its reasoning in Green and the guideline’s non-exhaustive list of factors (similarity, temporal overlap, the ability to “clear the slate”, undeserved bonus, deterioration in health, etc.).

Other authorities were implicit rather than explicit: the Sexual Offences Definitive Guideline (Sentencing Council, 2013; as amended) for Causing a child under 13 to engage in sexual activity provided the matrix of harm/culpability categories and their starting points/ranges.

2. Legal Reasoning

1. Re-categorisation of Harm: The court reiterated that any pre-school child is “extremely vulnerable”, triggering Category 2 harm automatically. Failure to recognise that vulnerability will be appellate error.
2. Proof of Grooming: For culpability to rise to A, the court must be “sure” (to the criminal standard) that grooming occurred. Although the Solicitor-General pointed to gift-giving and attention, the appellate court refused to elevate culpability without clear factual findings, underscoring that aggravating factors cannot be inferred loosely on a sentencing reference.
3. Starting Point & Range: Category 2B fixed a 6-year starting point (range 3–9 years). After balancing aggravation/mitigation, the notional “stand-alone” sentence for the instant offence became 4 years.
4. Totality Exercise:
   • Similarity and temporal overlap with the 2016 convictions (rape and assault of a 6-year-old) meant an uplift was appropriate; the offences “could have been sentenced together”.
   • But preventing an “undeserved bonus” could not justify entirely waiving punishment. The principle of just and proportionate sentencing required some additional custodial term.
   • The court settled on 2½ years consecutive as the lowest point compatible with justice, thereby rejecting the trial judge’s rationale that a prior 11y 3m sentence alone justified a non-custodial outcome.
5. Suspended Sentence Set Aside: A suspended sentence was “outside the range of sentences which a judge could properly pass” once the correct category was applied.

3. Impact of the Decision

The judgment matters because it:

• Clarifies that extreme youth is a stand-alone vulnerability factor. Sentencers must expressly address it or risk appellate intervention.
• Re-emphasises that grooming must be proved to the criminal standard at sentencing— prosecutorial assertions are insufficient.
• Provides a structured template for applying the Totality Guideline when dealing with historic sexual offences where the offender has already served a long custodial term:
  • Establish the notional sentence for the instant offence (in isolation, per the relevant guideline).
  • Identify aggravating/mitigating factors specific to the instant count.
  • Run the Totality checklist (similarity, overlap, slate-clearing, undeserved bonus, health).
  • Articulate why and by how much the notional sentence is reduced, converted to concurrency, or rendered consecutive.
• Sends a signal that suspended sentences are seldom appropriate for direct sexual offending against very young children, even where significant prior custody has been served.

Complex Concepts Simplified

• Unduly Lenient Sentence (ULS) Reference: The Attorney- or Solicitor-General can ask the Court of Appeal to increase a sentence that appears manifestly too low.
• Harm/Culpability Categories: The Sentencing Council categorises offences: “Harm” measures seriousness to the victim; “Culpability” measures blameworthiness of the offender. Each combination fixes a starting point and a range.
• Totality Guideline: Ensures that when sentencing multiple offences, the overall sentence is proportionate—neither “crushing” nor overly lenient. When old offences surface later, courts look backwards to decide how an earlier sentence would have been structured.
• Consecutive vs Concurrent: Concurrent sentences run at the same time; consecutive run one after the other. Here, the Court of Appeal required an additional consecutive term of 2 ½ years to reflect the new victim and separate harm.
• Grooming: A deliberate process of befriending or building trust with a child to facilitate sexual abuse. It is an aggravating factor and/or raises culpability.

Conclusion

R v Davis re-sets the boundaries for sentencing historic child-sex offences in the post-conviction stage. The Court of Appeal: (1) insisted on accurate categorisation of harm where the victim is of “extreme youth”; (2) refused to upscale culpability without firm findings; and (3) elaborated a transparent method for applying the Totality Guideline to avoid both “double counting” and “undeserved bonuses”. The decision will serve as a blueprint for future ULS references and sentencing exercises where historic sexual offending emerges after substantial custodial sentences have been served.