WJ, R. v

Factual and Procedural Background

This case involves a renewed application for leave to appeal against sentence following refusal by the Single Judge. The Appellant, aged 69 and father of four children, was convicted on 12 April 2022 at the Crown Court at Snaresbrook before Judge English and a jury of four counts of Indecent Assault on a Male Person and one count of buggery contrary to the Sexual Offences Act 1956. The complainant, one of the Appellant’s children, was sexually abused between the ages of 5 and 11 over a period from 1975 to 1982. The offences included multiple incidents of masturbation, digital penetration, and penile anal penetration. The abuse occurred primarily in the family home and also at the complainant’s grandmother’s house. The psychological impact on the complainant has been severe, including drug addiction, depression, and attempted suicide.

On 4 November 2022, the Appellant was sentenced. He had a previous conviction in 2010 for rape and indecent assault of a female under 16, committed between 1970 and 1972. The sentencing judge applied present-day sentencing guidelines but was constrained by the maximum sentences available at the time of the offences. The Appellant received a special custodial sentence of 17 years on the buggery count, with no separate penalty imposed for the indecent assault counts. The Appellant sought leave to appeal on the grounds that the sentence was manifestly excessive and that insufficient weight had been given to mitigating factors. The Single Judge refused leave, but this Court granted it and proceeded to hear the substantive appeal.

Legal Issues Presented

1. Whether the sentencing judge erred in imposing no separate penalty for the indecent assault counts (Counts 1 to 4) and whether those sentences were unlawful.
2. Whether the sentence imposed on the buggery count (Count 5) was manifestly excessive, particularly regarding the weight given to mitigating factors such as the Appellant’s age and health.
3. The interpretation and application of section 278 of the Sentencing Act 2020 concerning special custodial sentences for offenders of particular concern.
4. The correct approach to applying the Totality Guideline in sentencing multiple historical sexual offences.

Arguments of the Parties

Appellant's Arguments

• The sentence on Count 5 was manifestly excessive due to insufficient consideration of the Appellant’s age and health conditions.
• Inferred from the judge’s error regarding eligibility for release, the custodial term should have been shorter.
• Any restructuring of sentences to impose penalties on Counts 1 to 4 should involve a reduction in the sentence on Count 5 to avoid harsher overall punishment.

Respondents' Arguments

• Agreed that the sentences on Counts 3 and 4 were unlawful for failing to impose special custodial sentences under section 278.
• Maintained that the sentence on Count 5 was appropriate and not manifestly excessive.
• Argued that section 278 applies only if a custodial sentence is imposed and does not mandate imprisonment in every case.

Table of Precedents Cited

Court's Reasoning and Analysis

The Court analyzed the statutory provisions of section 278 of the Sentencing Act 2020 and its predecessor provisions, concluding that while a custodial sentence is usually expected for offences listed in Schedule 13, it is not mandatory in every case. The sentencing judge’s decision to impose no separate penalty on Counts 1 to 4 was scrutinized against the Totality Guideline, which requires that additional offences be reflected in the overall sentence unless the additional criminality has been adequately accounted for. The judge’s sole reliance on totality without further justification was found to be a misapplication of the guideline.

The Court emphasized that the serious nature of the multiple offences, including assaults by penetration, warranted substantial custodial sentences for Counts 1 to 4. It rejected the argument that restructuring sentences to impose penalties on these counts must reduce the sentence on Count 5 to avoid harsher treatment. Instead, the Court clarified that as long as the total custodial term and licence period do not exceed those originally imposed, the appellant is not more severely dealt with.

The Court applied the sentencing guidelines to determine appropriate concurrent sentences: determinate sentences of 5 years for Counts 1 and 2, and special custodial sentences of 6 years (5 years custody plus 1 year extended licence) for Counts 3 and 4. These run concurrently with the 17-year special custodial sentence imposed on Count 5. The Court also clarified the correct calculation of parole eligibility, confirming release consideration after serving two-thirds of the longest custodial term.

Holding and Implications

The Court allowed the appeal to the extent of quashing the sentences of no separate penalty on Counts 1 to 4 and substituting the following sentences:

• On Counts 1 and 2, determinate sentences of 5 years' imprisonment each;
• On Counts 3 and 4, special custodial sentences of 6 years each, comprising 5 years' custody and 1 year extended licence;
• All these sentences to run concurrently with each other and with the 17-year special custodial sentence (16 years custody plus 1 year licence) on Count 5.

The appeal against the sentence on Count 5 was dismissed, and all ancillary orders remained unchanged.

The direct implication is that the Appellant will serve concurrent custodial sentences reflecting the seriousness of all offences, correcting the previous sentencing error. The Court’s decision does not set new precedent but reinforces proper application of the Totality Guideline and statutory sentencing provisions for serious historical sexual offences.