Date: Dec 10, 2025

R v YDW [2025] EWCA Crim 1818: Appellate Non‑Aggravation under s.11(3) and the Inapplicability of the Victim Surcharge to Pre‑Commencement Offending

1. Introduction

This appeal concerned sentence only. The appellant (“YDW”), aged 80 at the time of appeal, was convicted at the Crown Court at Lincoln of seven offences of indecent assault contrary to section 14(1) of the Sexual Offences Act 1956, committed against his niece by marriage over a prolonged period (1985–1995) when she was aged between five and 15. The Recorder imposed an overall sentence of 12 years’ imprisonment by making the sentences on counts 1–6 concurrent (total 4 years 6 months) and count 7 consecutive (7 years 6 months).

The key issues on appeal were whether the overall sentence was manifestly excessive, including whether the Recorder misapplied the totality principle and failed to give sufficient weight to mitigation (age, ill-health, previous good character, and the historic nature of the offending). A further procedural issue arose on the day of the appeal: the appellant had reportedly suffered a stroke, prompting an application to adjourn for further medical evidence.

Although the appeal was dismissed, the judgment contains two points of wider practical importance: (i) the Court of Appeal’s approach to post-sentence medical developments in a sentence appeal framed as “manifest excess”; and (ii) the limits on the Court’s powers where a sentencing error below has operated to the appellant’s benefit, in light of section 11(3) of the Criminal Appeal Act 1968. The Court also clarified that a victim surcharge should not be imposed where the earliest offending predates the surcharge regime.

2. Summary of the Judgment

Appeal dismissed: The Court held that the total sentence of 12 years was “far from manifestly excessive” given the seriousness, duration, and impact of the abuse, including penetration in count 7.
Totality properly applied: The Recorder was entitled to make counts 1–6 concurrent and count 7 consecutive, treating count 7 as qualitatively different due to penetration and planning.
Mitigation considered but outweighed: The appellant’s age, poor health, and previous good character were acknowledged, but did not materially reduce the sentence in light of gravity and harm.
No adjournment for new medical report: The Court refused an adjournment because its task was to assess whether the sentence was excessive at the time it was imposed; subsequent events were not determinative. Nonetheless, the Court accepted that the day’s events underscored the appellant’s poor health.
Sentencing maximum error identified but not correctable to appellant’s detriment: The Recorder wrongly assumed a 5-year maximum for counts 1–3; the true maximum changed during 1985. The Court held it was precluded by section 11(3) of the Criminal Appeal Act 1968 from taking a different approach that would be more severe.
Victim surcharge should not have been imposed: The Court stated “for the avoidance of doubt” that no victim surcharge order should have been made because the earliest offending pre-dated the surcharge provisions.

3. Analysis

3.1 Precedents Cited

The judgment does not cite prior case authorities by name. Its reasoning is anchored instead in statutory provisions and well-established sentencing principles (particularly “totality” and “manifest excess”) as reflected in modern sentencing guidelines for equivalent offences.

The Court expressly relied on, and applied, the following instruments (named exactly as in the judgment):

Sexual Offences (Amendment) Act 1992 — applied at the outset to confirm lifelong anonymity for the complainant unless waived/lifted under section 3. While not determinative of sentence, it frames publication and reporting constraints typical in sexual offence appeals.
Sexual Offences Act 1956 (section 14(1)) — the statutory basis of conviction (indecent assault), reflecting the historic legal framework for conduct that would now be charged under modern sexual offences legislation.
Criminal Appeal Act 1968 (section 11(3)) — central to the Court’s handling of the Recorder’s error about maximum sentences, preventing the appellate court from adopting a course that would “deal with the appellant more severely.”

Although not named by statute title in the judgment, the Court also addressed the victim surcharge regime as a matter of temporal applicability, concluding it could not apply where the earliest offending predated its introduction.

3.2 Legal Reasoning

(a) The “manifestly excessive” test and the relevance of post-sentence events

The Court framed its task conventionally: to decide whether the sentence imposed below was manifestly excessive. Against that yardstick, it rejected an adjournment to obtain a new medical report about the appellant’s stroke because the report would concern what happened after sentence, whereas the appeal challenged the correctness of the sentencing exercise at the time it was carried out.

The Court nevertheless treated the events of the day as sharpening the already-known point that the appellant was elderly and in poor health; it simply did not accept that these matters could “detract from the seriousness” of prolonged sexual offending against a very young and vulnerable child, with enduring psychological harm.

(b) Totality, concurrency/consecutivity, and “qualitatively different” offending

The Court endorsed the Recorder’s structure: counts 1–6 concurrent, with count 7 consecutive. In doing so it implicitly approved a common totality approach in historic sexual abuse cases involving multiple counts over time:

Concurrency for repeated but related conduct reflecting a course of behaviour (here, multiple-incident counts capturing kissing and touching at different age bands);
Consecutivity where an offence is properly treated as adding distinct criminality or seriousness (here, count 7 involving penetration, preceded by masturbation in front of the victim and coercion).

The appellant argued count 7 was brief and did not involve “full penetration.” The Court rejected that as undermining seriousness, describing count 7 as “particularly serious” and observing that today it “would now be indicted as the rape of a child under 13 or 14 years of age.” The Court’s reasoning underscores that, in sentencing gravity, even partial or brief penetration of a child is treated as profoundly serious, especially when accompanied by grooming and coercive context.

(c) Historic offending, increased modern maxima, and guideline anchoring

The Recorder used the “modern equivalent offences” guideline approach while recognising that statutory maxima have increased. The Court noted that no issue was taken with categorisation within the modern guidelines. This reflects the settled practice that, for historic offences, modern guidelines may be used as an analytical tool for harm/culpability and proportionality, while the sentencing court remains constrained by the maxima applicable at the time of offending.

(d) The maximum sentence error and the section 11(3) constraint

The Recorder mistakenly believed the maximum for counts 1–3 was 5 years, whereas the judgment explains that the offending period straddled two regimes: from March to 15 September 1985 the maximum was 5 years; from 15 September 1985 it was 10 years. The correct approach would have required the Recorder to:

make findings as to when the conduct in each count occurred; and
apply the correct maximum for that period, resolving ambiguity in the appellant’s favour.

Crucially, no such findings were made, and the error operated to the appellant’s benefit. The Court held it was precluded by section 11(3) of the Criminal Appeal Act 1968 from correcting course in a manner that would “deal with the appellant more severely.” This is an important appellate discipline point: even where the sentencing judge has proceeded on an unduly lenient maximum or approach, the appellant cannot, in substance, be made worse off on his own sentence appeal.

(e) Victim surcharge temporal applicability

The Court observed an apparent inconsistency between the sentencing remarks and the Crown Court record about whether a victim surcharge was imposed, and then stated unequivocally that “no victim surcharge order should have been made as the earliest offending on the indictment pre-dated the victim surcharge provisions.” The significance lies in the Court’s confirmation that the surcharge regime is not to be imposed retrospectively by reference to conviction date alone; temporal applicability is tied to the legislative commencement framework.

3.3 Impact

Sentence appeals and fresh medical evidence: The judgment signals a restrained approach to adjournments for post-sentence medical developments where the appeal is framed as manifest excess, reinforcing that the appellate inquiry ordinarily focuses on the sentencing decision at the time it was made.
Totality in historic sexual offending: It reinforces that long-term grooming and repeated abuse, even decades old, can justify substantial custodial terms, and that penetration offences will often warrant consecutive treatment as “qualitatively different.”
Section 11(3) as a practical limit on appellate correction: The case offers a clear illustration of s.11(3) operating as a bar to appellate “tidying up” that would worsen the appellant’s position, even when the court below may have used an incorrect maximum.
Victim surcharge non-retrospectivity: Sentencers and court staff are reminded to check whether the surcharge regime applied at the time of the offence(s), particularly in historic indictments spanning long periods.

4. Complex Concepts Simplified

Manifestly excessive: A high threshold on appeal: the sentence must be outside the range a reasonable judge could impose, not merely “arguably too long.”
Totality: The principle that the overall sentence for multiple offences must be just and proportionate to the total criminality. Courts often use a mix of concurrent and consecutive sentences to reach a fair overall figure.
Concurrent vs consecutive sentences: Concurrent sentences run at the same time; consecutive sentences run one after the other. Consecutive terms are often used where an offence adds distinct seriousness beyond the rest.
Qualitatively different: An offence is treated as different in kind (not just degree)—for example, penetration as compared with non-penetrative sexual touching—so it may justify additional punishment.
Section 11(3) of the Criminal Appeal Act 1968: A safeguard preventing the Court of Appeal, on an appellant’s challenge to sentence, from taking a course that would make the outcome more severe for the appellant than the sentence imposed below.
Victim surcharge: A financial penalty added on sentence in certain cases. This judgment confirms it should not be imposed where the offences predate the surcharge provisions.

5. Conclusion

R v YDW affirms that substantial custodial sentences remain appropriate for grave, long-term child sexual abuse notwithstanding the passage of decades, the offender’s advanced age, or deteriorating health, and it endorses consecutive sentencing for a penetrative count treated as qualitatively different within a course of abuse. Beyond outcome, the judgment usefully clarifies two operational points: the Court of Appeal will not readily adjourn a “manifest excess” appeal to gather evidence of post-sentence ill-health, and—most significantly—it will not correct a beneficial sentencing error in a way that would worsen the appellant’s position due to section 11(3) of the Criminal Appeal Act 1968. It also provides a clear reminder that no victim surcharge should be imposed where the indictment’s earliest offending predates the surcharge regime.