Extended Sentence Required Where Dangerousness and Persistent Sexual Offending Outweigh a Purely Determinate Approach

Case: Westlake, R. v Neutral citation: [2026] EWCA Crim 471 (CACD) Date: 1 April 2026

Procedure: Reference by the Solicitor General under s.36 Criminal Justice Act 1988 (unduly lenient sentence)

1) Introduction

In R v Westlake [2026] EWCA Crim 471, the Court of Appeal (Criminal Division) (May LJ, McGowan J and HHJ Plaschkes) considered whether a determinate sentence of 9 years’ imprisonment for a series of sexual offences against five child victims (V1–V5) was “unduly lenient” under s.36 of the Criminal Justice Act 1988.

The offending spanned several years and included multiple penetrative offences (including two rapes), committed when the offender was largely aged 16–17, and later offending at age 20 involving sexual activity with a child and breaches of a Sexual Risk Order and notification requirements. A key feature was persistence: the offending continued despite police arrest, bail, and (later) the imposition of a protective order designed to prevent contact with under-16s.

The reference raised three central issues:

  • Totality: whether a 9-year overall term properly reflected the overall gravity across five victims.
  • Youth reduction (“tapering”): whether the judge’s reduction from adult equivalents was excessive given the chronology and continued offending.
  • Public protection: whether, having found “dangerousness”, the judge erred in declining to impose an extended sentence.

The Court allowed the reference and substituted an extended sentence of 16 years (11-year custodial term and 5-year extended licence), restructuring concurrency so that the second rape count became the vehicle for a longer, protective sentence.

2) Summary of the Judgment

The Court of Appeal held that the original sentence was unduly lenient because:

  • The overall determinate term did not adequately reflect the gravity of sustained, multi-victim sexual offending, particularly given the offender’s near-adult status at the most serious offence and his subsequent offending as an adult in breach of protective measures.
  • Having found the offender dangerous (significant risk of serious harm from future specified offences), the sentencing judge fell into error in “stepping back” from an extended sentence on the basis that a lengthy determinate sentence was sufficient.

The Court quashed the sentence on one rape count and substituted an extended determinate sentence of 16 years (11 years’ custody + 5 years’ extended licence). The sentence on the other rape count remained at 3.5 years but was made concurrent rather than consecutive. Other sentences and ancillary orders were left unchanged.

3) Analysis

3.1 Precedents Cited

(a) Attorney General’s Reference (R v Egan) [2022] EWCA Crim 1751

The Court relied on Attorney General's Reference (R v Egan) [2022] EWCA Crim 1751 for the orthodox constraints on s.36 review: the first-instance judge’s “range of reasonable sentences”, the “exceptional circumstances” filter for leave, and the principle that s.36 addresses “gross error” rather than mere disagreement.

This framework mattered because the Court had to identify not merely a better sentence, but one outside the permissible range. In the event, the Court found the combination of (i) insufficient totality and (ii) failure to impose protective sentencing despite a dangerousness finding took the case beyond borderline.

(b) Attorney-General's Reference (Azad) [2021] EWCA Crim 1846; [2022] 2 Cr App R(S) 10

Attorney-General's Reference (Azad) [2021] EWCA Crim 1846 was cited via Egan for the proposition that s.36 addresses “gross error”. Although the Court did not revisit Azad in detail, it used that authority as part of the discipline of intervention: the Court’s role is not to fine-tune but to correct sentences that are outside the proper range.

(c) R v Ahmed [2023] EWCA Crim 281

R v Ahmed [2023] EWCA Crim 281 was the central authority guiding the treatment of offences committed as a child but sentenced in adulthood. The Court drew particularly on three points:

  • Culpability remains youth-sensitive: the “distinction in levels of culpability” should not be lost simply because the offender is now an adult.
  • Multi-offence chronology: where multiple offences were committed as a child, the sentencing court may look at the likely sentence “at the time” for the offending “as a whole”.
  • Child-and-adult offending: where there are offences as both child and adult, later adult offending may be lead offending; but the key is how child offending aggravates adult offending and totality.

Importantly, the Court explained why this case was not the “common” Ahmed pattern: here the most serious offending was committed when the offender was 16–17, not in adulthood. That made the Ahmed methodology more demanding, because the court had to preserve youth mitigation while also reflecting that the offending escalated and persisted into adulthood and despite interventions.

3.2 Legal Reasoning

(a) The s.36 question: what made the sentence “unduly lenient”?

The Court accepted that the sentencing judge had correctly:

  • classified the key penetrative offences within the relevant guideline categories;
  • recognised that custody was inevitable;
  • applied the youth discount approach of arriving at between half and two-thirds of adult equivalents for offences committed as a child.

The Court’s criticism was not the individual terms for each rape in isolation, but the overall structure and outcome: a 9-year total produced by consecutive sentences on two rape counts with all other serious offences concurrent, without a clear explanation of how the remaining criminality across multiple victims was “absorbed” within the lead terms.

This is a classic totality problem. Even if each component sentence is defensible, a global term can still be unduly lenient if it fails to represent:

  • the number of victims,
  • the persistence and pattern of predation,
  • the escalation and repetition despite warnings/interventions, and
  • the breadth of harm done.

(b) Totality and the “missing” uplift for additional victims and offences

The Court emphasised that it could not tell from the sentencing remarks whether any uplift was built into the lead rape sentences to reflect: (1) additional penetrative offences; (2) additional victims; and (3) the later adult offending, including breaches of protective measures. Where concurrency is adopted broadly, the burden falls on the judge to explain how the lead sentence nevertheless captures overall criminality.

Two factual features were treated as especially aggravating of the overall picture:

  • The later rape as a near-adult after clear warning: the rape of V4 occurred when the offender was close to 18 and shortly after arrest and interview concerning rape of V2. The Court treated that as demonstrating heightened culpability: the offender had “very clear warnings” yet offended again.
  • Adult offending in breach of a Sexual Risk Order: at age 20, with trial pending and after a Sexual Risk Order prohibiting contact with under-16s, the offender nevertheless contacted and sexually offended against V5. Even if those acts were “less serious” than the earlier rapes, the adult maturity and the deliberate breach of safeguards materially aggravated the overall case.

These facts informed two linked conclusions: the 9-year total was too low, and public protection required a sentence type carrying longer supervision.

(c) Youth “tapering” under Ahmed: reduction is not mechanically fixed

The Court did not reject the legitimacy of a substantial youth reduction; it reaffirmed that approach as consistent with the Children guideline and Ahmed. But it stressed that subsequent events can justify a sentence more severe than would have been likely at the time of the child offending, including where later conduct shows the earlier offending was not an isolated lapse but part of a continuing course of conduct.

Here, the later adult offending and the persistence despite arrest/bail/order did exactly that: they retrospectively illuminated the earlier offending as embedded, predatory behaviour, not transient adolescent misjudgment. That justified a more severe overall sentence while still recognising youth at the time of much offending.

(d) Dangerousness and the necessity of an extended sentence

A pivotal legal move in the judgment is the Court’s treatment of the sentencing judge’s “step back” from an extended sentence. The judge had accepted probation’s assessment of dangerousness and stated he was “in no doubt” the offender presented a significant risk of serious harm, yet declined an extended sentence on the basis that the determinate term was lengthy and the offender was young.

The Court held that, on these facts, that was an error. The reasoning is protective and evidence-based:

  • the offending continued despite warnings, bail, and court orders;
  • only remand stopped further offending;
  • post-conviction, the offender continued to deny responsibility (undermining prospects of effective risk reduction);
  • the offender’s neurodevelopmental conditions (ASD/ADHD) and associated social difficulties added to concerns about the reliability of rehabilitation outcomes.

The Court concluded that these factors made it “not possible to be confident” that maturation and targeted rehabilitation would sufficiently reduce risk. Accordingly, an extended licence period was required as “an additional protective measure”.

(e) The appellate remedy: restructuring concurrency to deliver protection

Rather than simply adding more consecutive determinate time, the Court adopted a structurally significant remedy: it imposed an extended sentence on one rape count (count 9), and made the other rape count concurrent. This achieves two objectives:

  • Protection: by lengthening custodial time and, critically, adding an extended licence tail.
  • Totality discipline: by avoiding an accumulation of consecutive sentences that might produce an excessive overall term once an 11-year custodial component is set.

The result was an overall sentence framework explicitly oriented to risk management: 11 years in custody plus 5 years extended supervision in the community.

3.3 Impact

(a) Sentencing practice: “dangerousness found” + “no extended sentence” requires compelling justification

The decision reinforces that where a judge finds a significant risk of serious harm from further specified offences, a decision not to impose an extended sentence is vulnerable on appeal if the reasons rest only on sentence length and youth, especially where the factual pattern shows persistent offending and disregard of safeguards.

(b) Totality in multi-victim child sexual abuse: concurrency must be explained

The judgment underscores that broad concurrency across multiple victims can produce undue leniency unless:

  • the lead sentence is clearly uplifted to reflect additional victims/offences, and
  • the judge explains how the overall term remains proportionate to the entire offending.

In practice, this encourages sentencers either to (i) structure some consecutive sentences by victim or offence group, or (ii) articulate a transparent uplift in the lead term.

(c) Ahmed applied in a “reverse-common” scenario

Ahmed is often operationalised where the adult offences are the lead. Here, the Court shows how to apply Ahmed where the gravest offending occurred at 16–17: youth mitigation remains essential, but later adult conduct (breach of orders; persistence; denial) can legitimately increase the sentence imposed on the adult for child offending.

(d) Attorney General references: a reminder that “type of sentence” can be as important as length

This reference illustrates that undue leniency is not confined to arithmetic length. The “gross error” may lie in choosing a determinate sentence where the statutory sentencing architecture for dangerous offenders points to an extended sentence to protect the public.

4) Complex Concepts Simplified

  • “Unduly lenient” (s.36 Criminal Justice Act 1988): not merely “lenient”, but outside the range a reasonable judge could impose—typically involving a serious misstep in principle, assessment, or structure.
  • Totality: the overall sentence must be just and proportionate to the whole offending; multiple sentences must not either understate or overstate the overall criminality.
  • Dangerousness: a finding that the offender poses a significant risk of serious harm through future specified offences—triggering consideration of protective sentencing options.
  • Extended sentence (extended determinate sentence): a sentence comprising a custodial term plus an extended period of licence (supervision) after release, aimed at protecting the public where risk persists.
  • Youth “tapering” / child sentencing approach: even when sentenced as an adult, offences committed as a child are sentenced through the lens of reduced culpability; courts often use a proportion of the adult equivalent, but can adjust in light of later information showing greater harm or a continuing course of conduct.
  • Sexual Risk Order & notification requirements: civil preventative measures restricting contact/behaviour and requiring the offender to keep police informed; breaches aggravate seriousness by showing disregard for safeguards.

5) Conclusion

R v Westlake [2026] EWCA Crim 471 is significant for two reasons. First, it tightens expectations around totality in multi-victim sexual offending: concurrency without explanation can understate overall gravity. Second, it makes clear that where dangerousness is found and the offending demonstrates persistence despite interventions, a court will often need the protective architecture of an extended sentence, not merely a long determinate term—particularly where the offender continues to deny responsibility and the prospects of rehabilitation reducing risk are uncertain.