Introduction

The case of R v WJ [2023] EWCA Crim 789 presents a pivotal moment in the jurisprudence surrounding the sentencing of historical sexual offences in England and Wales. The appellant, herein referred to as WJ, a 69-year-old father, was convicted of multiple sexual offences against his son, M, committed between 1975 and 1982. These offences included indecent assaults and a grievous act of buggery, violating sections of the Sexual Offences Act 1956. The initial sentencing by Her Honour Judge English did not impose separate penalties for several counts of indecent assault, leading to an appeal that scrutinized the application of Section 278 of the Sentencing Act 2020.

The key issues revolved around whether the sentencing judge erred in not imposing separate penalties under Section 278 for certain counts, thereby potentially under-sentencing WJ for offences that met the criteria for special custodial sentences. The case underscores the complexities involved in sentencing multiple, historically situated sexual offences and the interpretation of sentencing guidelines in such contexts.

Summary of the Judgment

The Court of Appeal Criminal Division, led by Treacy LJ, examined WJ's sentencing to determine if the initial Court of Appeal approach adhered to the mandates of Section 278 of the Sentencing Act 2020. Initially, WJ received a special custodial sentence of 17 years for the most serious offence (Count 5 - buggery), which included a custodial term and an extended licence period. However, the sentencing judge did not impose separate penalties for Counts 1 to 4, which involved multiple indecent assaults of varying severity.

Upon appeal, it was revealed that both prosecution and defence counsel acknowledged the unlawfulness of not sentencing Counts 3 and 4 separately under Section 278. The Court of Appeal concurred, noting that the absence of separate penalties failed to reflect the full criminality of WJ's actions. Consequently, the appellate court quashed the sentences for Counts 1 to 4 and imposed determinate sentences for Counts 1 and 2, and special custodial sentences for Counts 3 and 4, ensuring all sentences ran concurrently with the original sentence for Count 5. This adjustment ensured compliance with sentencing guidelines and the principles of justice.

Analysis

Precedents Cited

The judgment referenced several key cases to establish the legal framework for sentencing:

• R v Patel [2021] EWCA Crim 231 and R v LN [2023] EWCA Crim 371: These cases clarified that release provisions do not influence the calculation of appropriate custodial terms. They reinforced that sentencing should not be adjusted merely based on when release becomes eligible.
• R v LF [2016] EWCA Crim 561: This case provided guidance on Section 236A of the Criminal Justice Act 2003, the predecessor to Section 278. It emphasized that while custodial sentences are generally expected for offences listed in the corresponding schedules, exceptional non-custodial sentences could be appropriate.

These precedents were instrumental in shaping the court’s interpretation of Section 278, particularly in differentiating between mandatory custodial sentences and the Court's discretion in exceptional circumstances.

Legal Reasoning

The Court of Appeal meticulously dissected the application of Section 278, highlighting that while the statute does not explicitly mandate custodial sentences for every listed offence, it sets an expectation aligned with the severity of the offences. The appellate court agreed with the Single Judge that Section 278 does not compel the imposition of a custodial sentence in every instance but stresses that non-custodial sentences are exceptional.

The judge scrutinized the initial sentencing for failing to apply separate penalties for multiple serious offences, thereby neglecting the totality principle. The court posited that each serious offence should warrant its own penalty unless the additional criminality is adequately addressed within the sentences of other offences. In WJ's case, the lack of separate penalties for Counts 1 to 4 did not satisfy this requirement, necessitating correction to ensure that the sentencing appropriately reflected the gravity and multiplicity of the offences.

Impact

This judgment has significant implications for the sentencing of historical sexual offences:

• Clarification of Section 278: It reaffirms that while Section 278 does not rigidly mandate custodial sentences, the nature of the offences usually necessitates such sentences, and deviations must be exceptional and well-justified.
• Totality in Sentencing: The case underscores the importance of the totality principle, ensuring that multiple serious offences are individually penalized to reflect their cumulative criminality.
• Guideline Adherence: Judges are reminded to meticulously apply sentencing guidelines, especially regarding special custodial sentences, to uphold justice and consistency in sentencing.
• Future Appeals: Lawyers and advocates will now have clearer precedents to argue for or against the application of special custodial sentences in similar cases, potentially leading to more uniform sentencing outcomes.

Complex Concepts Simplified

Section 278 of the Sentencing Act 2020

What It Is: A provision that applies to certain serious offences, requiring courts to impose a custodial sentence accompanied by an extended licence period if a life sentence or extended sentence is not imposed.

Key Points:

• Applies to offences listed in Schedule 13.
• Requires a custodial term plus a 1-year licence period unless a life sentence or extended sentence is imposed.
• Does not explicitly mandate imprisonment in every case but expects it given the severity of offences.

Totality Principle

Definition: A sentencing principle ensuring that the total length and severity of multiple sentences do not result in a punishment that is excessive in relation to the combined criminality of the offences.

Application: When an offender is sentenced for multiple offences, the court must consider the cumulative impact of all sentences to ensure they are proportionate and just.

Special Custodial Sentence

What It Is: A type of sentence that includes a term of imprisonment followed by an extended period on licence, aimed at offenders considered to be of particular concern.

Purpose: To provide additional supervision and support post-release, mitigating the risk of reoffending.

Conclusion

The Court of Appeal's decision in R v WJ [2023] EWCA Crim 789 serves as a critical reaffirmation of the principles governing the sentencing of serious sexual offences. By correcting the initial sentencing oversight, the court emphasized the imperative to apply special custodial sentences appropriately, ensuring that each serious offence is individually recognized and penalized in accordance with the law. This judgment not only clarifies the interpretation of Section 278 of the Sentencing Act 2020 but also reinforces the sanctity of the totality principle in delivering just and proportionate sentences. Moving forward, this case sets a precedent that will guide judges and legal practitioners in handling similar cases, promoting consistency and fairness within the criminal justice system.