R v Waldrom [2025] EWCA Crim 1380: Late Sentencing Appeals, Fresh Psychological Evidence, and Totality—A Four‑Point Clarification

Introduction

In R v Waldrom [2025] EWCA Crim 1380, the Court of Appeal (Criminal Division), constituted by Lord Justice Warby, refused an out‑of‑time application to renew a sentence appeal and declined permission to add new grounds and adduce fresh psychological evidence under section 23 of the Criminal Appeal Act 1968. The case involved serious sexual offending against a 15‑year‑old complainant (anonymised as “C” under the Sexual Offences (Amendment) Act 1992), comprising one count of assault by penetration and one count of rape committed when the applicant was 24.

After conviction at Leicester Crown Court, the applicant received consecutive sentences of 4 years 6 months (assault by penetration) and 7 years 6 months (rape), a total of 12 years’ imprisonment. A single‑judge refusal of permission to appeal against sentence (on totality) in August 2023 was not renewed at the time. Nearly 20 months later, now instructed by new solicitors and leading counsel, the applicant sought:

an extension of time to renew the original ground (totality);
leave to add four new grounds (inadmissible material, mis‑categorisation, totality, absence of a psychological report); and
permission to adduce fresh psychological evidence (two reports by a consultant psychologist).

The Court took the opportunity to reiterate and sharpen existing principles in three areas: lateness and extension of time, the narrow utility of post hoc psychological material at sentence appeal, and the sentencing totality analysis when distinct sexual incidents are committed within a single evening.

Summary of the Judgment

Extension of time refused: A circa 20‑month delay was unjustified on the reasons advanced, though the Court nonetheless considered the merits.
Inadmissible material point dismissed: The sentencing judge explicitly declined to rely on a “summary of sexual behaviour” and the Court of Appeal was satisfied he put it out of mind.
Sentencing categorisation upheld: Culpability was rightly placed in Category A for rape (planning, facilitation by alcohol/cannabis, marked age disparity), and both offences were harm Category 3. The judge’s balancing of aggravation/mitigation was unimpeachable; prosecution delay did not mitigate; previous good character carried very limited weight given the gravity.
Totality challenge rejected: The offences were properly treated as two separate incidents justifying consecutive sentences. The judge’s alternative “single episode/Category 2 harm” route yielding the same overall term further insulated the totality assessment.
Fresh psychological evidence refused: The expert material was not shown to bear materially on culpability or sentence. The Court identified four reasons—centred on lack of linkage to contemporaneous conduct, reliance on childhood diagnoses without current clinical disorder, the judgment of trial professionals who saw no need for such evidence, and the trial judge’s unassailable findings of planned, predatory conduct. The evidence might even have supported a “dangerousness” analysis.

Factual and Procedural Context

The offences occurred during an evening and early hours in July 2019 in the applicant’s home. The applicant collected C (15) and her friend J (15), bought vodka, and all drank alcohol and smoked cannabis. After a sexualised drinking game, the applicant digitally penetrated C upstairs (count 1). Despite being told to stop, he later resumed sexual activity with C downstairs, pulling down her trousers and raping her vaginally without a condom and ejaculating inside her (count 2). A neighbour heard a distressed female crying “no” during the early hours. The duration of the events was approximately 40 minutes. C promptly disclosed and the matter proceeded to trial.

At sentence, the judge rejected prosecutorial reliance on a police “summary of sexual behaviour.” He assessed both offences as harm Category 3; culpability for the rape was Category A, due to planning, the facilitation via alcohol/cannabis, and a significant age disparity. The judge discounted extended sentence provisions, finding the “dangerousness” threshold not met on the available cogent material. He imposed consecutive terms to reflect two distinct episodes.

The single original proposed ground (manifest excess for want of totality) was rejected on the papers. Over 20 months later, the applicant sought to revive the appeal with additional grounds and fresh psychological evidence derived from reports produced in late 2024 and early 2025.

Precedents and Authorities Cited

R v Bennett [2023] EWCA Crim 795

Bennett sets out the approach to late applications: the Court assesses all the circumstances, including length of delay, reasons for it, and the overall interests of justice. Waldrom applies Bennett to a very late sentence appeal. Although the delay was found unjustified, the Court demonstrated that lateness is not necessarily fatal; it will often still consider arguable merits. Here, no arguable merit was found, and the extension was refused.

R v James [2018] EWCA Crim 285; [2018] 1 WLR 2749

James acknowledges that sometimes legitimate appeal points emerge months or years later, but such cases are rare. Waldrom uses James to frame the rarity and to explain why, on these facts, the later‑obtained psychological evidence did not tip the balance—particularly where it lacked specific connection to the index conduct and no trial participant had considered it necessary at the time.

Criminal Appeal Act 1968, s. 23 (fresh evidence)

Although not set out formulaically, the Court’s analysis aligns with the statutory and common‑law factors governing admission of fresh evidence on appeal, including:

whether the evidence is credible and capable of belief;
whether there is a reasonable explanation for not adducing it at trial/sentence;
whether it might have an impact on the safety of the conviction or the appropriateness of sentence; and
whether admission is necessary or expedient in the interests of justice.

Waldrom’s four reasons for refusal map onto these factors: credibility/clinical cogency, timing and explanation, probative force as to culpability/dangerousness, and the interests of justice (given the judge’s firm factual findings).

Sexual Offences (Amendment) Act 1992

The Court reaffirmed the complainant’s lifetime anonymity, anonymising C (and J) accordingly. This statutory framework is standard but important in shaping how such judgments are reported and argued.

Legal Reasoning

1) Delay and the Extension of Time

The Court applied Bennett’s holistic approach. The nearly 20‑month delay was plainly substantial. Reasons advanced—changing solicitors, initial focus on conviction, obtaining and funding expert reports, transcripts, and counsel’s views—were insufficient, particularly as three new grounds were unrelated to the eventual psychological evidence. Nonetheless, because unjustified delay is not automatically determinative, the Court examined the merits; finding none, it refused the extension.

2) The “Inadmissible Material” Argument

The defence complained that a prosecution “summary of sexual behaviour” might have subconsciously influenced the judge despite his explicit ruling to disregard it. The Court rejected this proposition as speculative and unfounded, reiterating the settled presumption that judges are trained to put aside excluded material. No trace of improper reliance appeared in the sentencing remarks.

3) Sentencing Categorisation and Aggravation/Mitigation

The Court upheld Category A culpability for rape within the Sentencing Council’s guidelines. It emphasised:

Planning and facilitation: The applicant’s procurement of alcohol for two minors, the sexualised drinking game, and the use of alcohol/cannabis to render them compliant supported planning rather than opportunism.
Age disparity: A 24‑year‑old adult and a 15‑year‑old child are separated by a “considerable gulf” in maturity; nothing narrowed that gulf here, and C presented as more vulnerable than average.
Aggravation: Ejaculation without contraception, indifferent to pregnancy risk, was treated as grossly aggravating in the circumstances.
Mitigation: Prior good character attracts very limited weight in serious sexual offending. The argument that prosecution delay should mitigate failed; there was no unfair prejudice to the applicant and the delay stemmed from his non‑admission.

These features justified sentences above the guideline starting points.

4) Totality and Consecutive Sentences

Totality requires that the overall sentence fairly reflects the total criminality. The Court endorsed the judge’s treatment of the two offences as discrete incidents (different locations, separated in time), justifying consecutive terms. The judge’s alternative route—treating the conduct as a single prolonged episode (harm Category 2) but imposing a 12‑year sentence on the rape with a concurrent nine‑year term for assault by penetration—demonstrated that the same overall sentence was reached either way. This dual reasoning made any totality challenge unarguable.

5) Fresh Psychological Evidence

The Court offered a clear, four‑point rationale for refusing admission and declining to treat the reports as mitigating:

Lack of specific linkage: The reports opined that a confluence of factors would have affected impulse control and judgment “to a clinically significant extent” but did not address the applicant’s specific behaviour during the index offences.
Limited current clinical foundation: Reliance on childhood ADHD diagnoses and observation of “traits” of ASD, without current clinical diagnosis or observed ADHD signs, reduced the probative value. The “high point” was autism‑like traits at the time.
Forensic judgment at the time: Neither the applicant nor his trial lawyers considered psychological evidence necessary for trial or sentence. The issue did not animate the initial sentence appeal, and the later focus on sentence emerged only after an unsuccessful attempt to identify conviction grounds.
Unassailable factual findings: The judge found planned, predatory behaviour persisted despite C’s explicit protest, facilitated by intoxicants. Such findings were not materially affected by general evidence of impulsivity or processing difficulties. Indeed, the psychology might have strengthened a “dangerousness” case rather than mitigated culpability.

The Court also rejected the suggestion that incarceration would be unusually harsh here as a reason to reduce sentence length. On these facts, a lengthy sentence was inevitable.

Impact and Significance

Practical Implications for Appellate Practice

Lateness requires compelling merits: Even when the Court looks past unjustified delay, extensions will be refused where the merits are weak.
“Subconscious reliance” arguments will rarely succeed: Absent concrete indicators, appellate courts respect trial judges’ capacity to disregard excluded material.
Fresh psychological evidence faces a high bar: Post hoc reports that (a) lack a current, clinically robust diagnosis and (b) do not forensically engage with the index conduct will rarely alter culpability or sentence. Evidence must be tightly tethered to what happened, not just to personality traits or childhood history.

Sentencing Guidance Reinforced

Supply/facilitation of intoxicants to minors in a sexual context is planning: Expect Category A culpability where an adult uses alcohol/cannabis to facilitate sexual activity with a child.
Age disparity matters: Courts will give substantial weight to the maturity gulf between an adult and a mid‑teen child.
Aggravation: unprotected ejaculation: Treating ejaculation without contraception as strongly aggravating is endorsed in the circumstances of this case.
Limited weight to prior good character: Particularly in serious sexual offending, absence of convictions rarely shifts the needle.
Prosecution delay is not mitigation absent prejudice: Mere passage of time, in the absence of unfair detriment to the defendant, does not reduce sentence.
Totality and distinct incidents: Where offences, even within one evening, are separable by place, time, and conduct, consecutive sentences are legitimate. A reasoned alternative “single episode” analysis reaching the same endpoint reinforces appellate resilience.

For Defence Practitioners

Early mental‑health screening: If psychological issues may bear on culpability or risk, obtain assessments pre‑trial or pre‑sentence and link them to the specific facts. Late reports untethered to the index conduct are unlikely to assist.
Prepare to meet planning and facilitation findings: Where the facts include procurement of intoxicants and sexualised games, anticipate Category A arguments and assemble evidence to counter “planning” if tenable.
Be cautious with “harshness of custody” arguments: On serious sexual facts with strong aggravation, such submissions rarely reduce term length.

Complex Concepts Simplified

Totality

The totality principle ensures the overall sentence for multiple offences is just and proportionate to the total offending. Courts decide whether to run sentences concurrently (at the same time) or consecutively (one after another). Distinct episodes or qualitatively different harms frequently justify consecutive terms.

Harm and Culpability Categories (Sexual Offences Guidelines)

Harm: Ranges from Category 1 (most severe) downward. Severe psychological harm or prolonged incidents can lift harm category. Here, harm was Category 3 because “severe psychological harm” or “particularly vulnerable due to personal circumstances” was not made out on the guideline’s terms, notwithstanding real impact.
Culpability: Category A reflects greater blameworthiness (e.g., planning, targeting vulnerability, facilitation through intoxicants); Category B is lower. The facts here supported Category A.

Extended Determinate Sentence (EDS) and “Dangerousness”

An EDS can be imposed when there is a significant risk of serious harm to the public from further specified offences. The judge found that the material “fell far short” of showing dangerousness to the requisite standard. The Court noted the psychological reports might, if anything, have supported dangerousness rather than mitigated culpability.

Fresh Evidence on Appeal (s. 23 Criminal Appeal Act 1968)

The Court may admit new evidence if it is credible, explains its absence at trial/sentence, and could reasonably affect the outcome, making admission necessary or expedient in the interests of justice. Waldrom underscores that generalised psychological opinions, disconnected from the specifics of the offending and unsupported by current clinical diagnosis, will rarely meet this threshold in sentence appeals, particularly where the trial judge’s factual findings are strong.

Anonymity under the Sexual Offences (Amendment) Act 1992

Complainants in sexual offence cases have lifetime anonymity. Courts and commentators must avoid identifying details. The Court anonymised the complainant as “C” and her friend as “J.”

Conclusion

Waldrom is a robust reaffirmation of orthodox appellate and sentencing principles, with useful clarifications for practice:

Very late sentence appeals require compelling merit; procedural obstacles will not be surmounted by weak grounds.
Sentencing judges are trusted to disregard excluded material; speculative “subconscious reliance” arguments carry little weight.
In serious sexual offences involving minors, using intoxicants to facilitate sexual activity and pronounced age disparity justify Category A culpability and substantial sentences; unprotected ejaculation is strongly aggravating.
Prosecution delay, without demonstrable prejudice, does not mitigate sentence; previous good character carries limited weight.
Fresh psychological evidence must be specific, clinically well‑grounded, and linked to the index conduct; otherwise, it is unlikely to alter culpability or sentence, and may even support a dangerousness analysis.
Totality is properly addressed by consecutive sentences for clearly distinct episodes, and appellate courts will uphold reasoned alternative routes leading to the same proportionate outcome.

The decision thus provides a clear signal: late attempts to revisit sentence on the basis of generalised, retrospective psychological opinion will rarely prevail, particularly where the sentencing judge’s findings of planned, predatory conduct are well supported by the trial evidence. For practitioners, Waldrom highlights the importance of early, case‑specific mental health investigation, and a realistic appreciation of aggravation, mitigation, and totality in serious sexual offending.