EB, R v

Factual and Procedural Background

The Appellant pleaded guilty to multiple counts of indecent assault, sexual assault, and sexual assault by penetration of a child. The offences occurred between summer 2008 and spring 2009, involving the Appellant's step-granddaughter, who was aged between ten and eleven during the relevant period. The Appellant had been babysitting his grandson and the complainant, and the assaults escalated from inappropriate touching over clothing to digital penetration. The complainant reported the assaults to her mother and stepfather, leading to police involvement and the Appellant's partial admissions. The Appellant was previously convicted of manslaughter and indecent assault on male children, with a history of sexual offending and mental health issues noted in reports. He was sentenced on 14 April 2010 to an extended custodial sentence of four years with an extended period of two years. The Appellant was granted leave to appeal against the sentence on the ground that the trial judge failed to warn of her intention to depart from the pre-sentence report's risk assessment.

Legal Issues Presented

1. Whether the trial judge erred in imposing an extended custodial sentence without warning counsel of her intention to depart from the pre-sentence report's assessment that the Appellant did not constitute a significant risk of serious harm.
2. The proper approach to assessing significant risk of serious harm under the relevant statutory provisions.
3. The extent to which a trial judge may depart from the risk assessment contained in a pre-sentence report when imposing sentence.

Arguments of the Parties

The opinion does not contain a detailed account of the parties' legal arguments.

Table of Precedents Cited

Court's Reasoning and Analysis

The court acknowledged that the trial judge did not warn counsel of her intention to depart from the pre-sentence report's assessment that the Appellant did not pose a significant risk of serious harm. The court reviewed established guidance from R v Lang, emphasizing the higher threshold for significant risk and the necessity of considering various factors including the offender's history, social circumstances, and psychological assessments. The court noted the distinction between the likelihood of reoffending and the significant risk of serious harm, clarifying that a high likelihood of reoffending does not necessarily equate to a significant risk of serious harm.

The court examined the probation officer's explanation of the risk assessment process, including the internal and external controls considered, such as the offender's motivation and acceptance of supervision, and statutory controls like Sexual Offences Prevention Orders (SOPOs). The court found no inherent tension between the high likelihood of reoffending and the absence of significant risk of serious harm at the time of the pre-sentence report, noting that the latter is a dynamic assessment subject to change.

Applying these principles, the court agreed with the trial judge's conclusion that the statutory test for an extended sentence was met, given the grooming behaviour, non-disclosure of previous offending, and failure to seek available help. The court held that the judge's departure from the pre-sentence report was justified and no error was demonstrated that would warrant interfering with the sentence.

Holding and Implications

The appeal against sentence was dismissed.

The court upheld the extended custodial sentence imposed by the trial judge despite the procedural irregularity of failing to warn counsel of the departure from the pre-sentence report’s risk assessment. The decision confirms that while pre-sentence reports are critical in sentencing decisions, judges retain discretion to depart from them when justified by the facts and circumstances, particularly in assessing risk over a prolonged period. No new precedent was established; the ruling reinforces existing principles regarding risk assessment and the imposition of extended sentences for sexual offences involving children.