Factual and Procedural Background
This appeal concerns an adult Appellant convicted in 2021 and 2023 of historic sexual offences committed in the late 1970s and early 1980s against two younger half-sisters, referred to as C1 and C2. The offences included multiple counts of rape, committed when the Appellant was aged between 15 and 18, and the victims were children aged between 7 and 13. The offences took place in family homes and involved threats to silence the victims. The Appellant was sentenced in June 2023 to a total of five years imprisonment, with release expected after serving half the sentence under then-current early release provisions.
The Appellant appeals against sentence, raising two grounds: first, that the sentence was manifestly excessive compared to what would have been imposed in 1978; second, that the judge erred in not adjusting the sentence to reflect changes in early release provisions which now require serving two-thirds of the sentence before release, rather than half. The appeal was granted limited leave to proceed on the second ground, with a renewed application for leave on the first ground.
Legal Issues Presented
- Whether, when applying the principle from R v Ahmed that sentencing an adult for offences committed as a child must start with the sentence likely imposed at the time of the offence, the court should take account of changes in early release provisions between then and now.
- Whether the sentence of five years imprisonment was manifestly excessive when compared to sentencing practices and maximum sentences available in 1978/1979.
Arguments of the Parties
Appellant's Arguments
- The sentencing judge erred by not considering early release provisions as they applied in 1978/1979, resulting in a harsher punishment than would have been imposed at the time.
- The principle in R v Ahmed requires the sentence to reflect not only culpability and harm at the time of offending but also the practical effect of the sentence, including time likely to be served under historic release regimes.
- Ignoring changes in release provisions means the Appellant will serve a longer custodial period than he would have if sentenced shortly after the offences, violating the principle that the offender should not be more harshly punished.
- The class of cases involving sentencing adults for offences committed as children is exceptional and justifies departure from the general rule against considering early release provisions in sentencing.
- In any event, the five-year sentence was too long, and the Appellant would likely have received Borstal training rather than detention under section 53(2) in 1978, implying a maximum equivalent sentence of four years.
Respondent's Arguments
- The sentencing judge was correct not to adjust the sentence for changes in early release provisions, consistent with the principle established in R v Patel that early release provisions are ordinarily not to be taken into account when setting sentence length.
- The historic release regime was discretionary and speculative, making it impossible to determine precisely when the Appellant would have been released, so it should not influence sentencing.
- There is no authority in R v Ahmed or elsewhere requiring consideration of early release provisions when sentencing adults for offences committed as children.
- The reference in R v Ahmed to early release provisions concerned the specific historic structure of Borstal training sentences and does not establish a general principle.
- The Appellant's case is not exceptional and does not justify departing from the general rule excluding early release provisions from sentencing considerations.
- The five-year sentence was not manifestly excessive; the offences were serious and the Appellant would likely have been sentenced to detention under section 53(2) rather than Borstal training in 1978.
Table of Precedents Cited
| Precedent |
Rule or Principle Cited For |
Application by the Court |
| R v Ahmed [2012] EWCA Crim 281 |
When sentencing an adult for offences committed as a child, the starting point is the sentence likely imposed shortly after the offence; children have lower culpability; sentencing must reflect historic sentencing regimes and guidelines. |
The court applied Ahmed as the guiding principle for determining the appropriate sentence, confirming the starting point is the historic sentence likely imposed, but rejected the Appellant's argument that changes in early release provisions should be considered. |
| R v Patel [2021] EWCA Crim 231 |
Sentencing judges should not ordinarily take account of changes in early release provisions when deciding sentence length, preserving the constitutional distinction between judiciary and executive. |
The court relied on Patel to reject the Appellant's submission that the sentence should be reduced to reflect earlier release provisions, affirming that changes in release regimes should not affect the sentence imposed. |
| R v Round [2009] EWCA Crim 2667 |
Early release and licence provisions should generally be left out of account upon sentencing; it is neither necessary nor right for courts to consider these when framing sentences. |
Referenced within Patel and affirmed as part of the principle that release provisions are executive matters, not to be reflected in sentencing decisions. |
| R v Billam [1986] 1 WLR 349 |
In most cases in the 1980s, young persons convicted of rape would be sentenced to detention under section 53(2) CYPA 1933 rather than Borstal training; sentencing principles for rape were restated. |
The court used Billam to support the conclusion that the Appellant’s sentence was not manifestly excessive, as detention under section 53(2) was the appropriate historic sentence for the seriousness of the offences. |
Court's Reasoning and Analysis
The court began by reaffirming the principle from R v Ahmed that sentencing an adult for offences committed as a child must start with the sentence likely imposed at the time of offending, reflecting the lower culpability and moral responsibility of children. The court emphasized that this "starting point" is the headline sentence based on culpability and harm, not modified by how the sentence was or would be administered by the executive, including early release provisions.
The court then considered the principle from R v Patel that sentencing judges should ordinarily not take account of early release provisions when determining sentence length. This principle preserves the constitutional separation between judicial sentencing and executive administration of sentences. The court found no authority in Ahmed that requires departure from this principle in cases of sentencing adults for offences committed as children.
The court analyzed the reference in Ahmed to early release provisions and concluded that it was limited to the specific historic sentence structure of Borstal training, which involved a period of custody followed by supervision, and does not establish a general principle requiring consideration of early release regimes.
The court noted the speculative nature of historic release regimes, particularly for young offenders under section 53(2) CYPA 1933, where release was discretionary and could not be reliably predicted. It would therefore be impractical and inappropriate to adjust sentence length based on hypothetical early release dates.
Applying these principles, the court held that the sentencing judge correctly applied the Ahmed approach and was right to refuse to adjust the sentence to reflect changes in early release provisions, consistent with Patel.
Regarding the manifest excessiveness ground, the court found the sentencing judge reasonably concluded that the Appellant’s offences warranted detention under section 53(2) rather than Borstal training, supported by the precedent in R v Billam. The court considered the offences more serious than those in Ahmed, and the five-year sentence was not manifestly excessive.
Holding and Implications
The court refused leave to appeal on the ground that the sentence was manifestly excessive and dismissed the appeal on the ground concerning adjustment for early release provisions.
The direct effect is that the Appellant’s sentence of five years imprisonment stands as imposed, with no reduction to reflect changes in early release laws. No new precedent was set beyond affirming the established principles from R v Ahmed and R v Patel regarding sentencing adults for offences committed as children and the exclusion of early release provisions from sentence calculation.