GS, R. v

Factual and Procedural Background

The applicant was convicted on 6 October 2023 at the Crown Court at Worcester of one offence of causing a child to engage in sexual activity and two offences of indecent assault, all under the Sexual Offences Act 1956, for conduct that occurred before the Sexual Offences Act 2003 came into force. The offences involved the applicant sexually assaulting a child under 10 years old, the complainant, during a period when he was in a relationship with the complainant's mother and living in the same household. The assaults took place in the bedroom shared by the applicant and the complainant's mother, occurring on multiple occasions, with the applicant having care of the complainant on Saturday mornings. The complainant disclosed the abuse to her cousin at around age five, but no action was taken at that time. The abuse continued until the applicant ended the relationship and left the household approximately ten years later. The matter was reported following a chance encounter between the complainant and the applicant in June 2018, when the applicant allegedly admitted or apologised for the conduct. On 13 October 2023, the applicant was sentenced to 11 years' imprisonment with a one-year extended licence period under the Sentencing Act 2020. The applicant renewed an application for leave to appeal against sentence, which had previously been refused by a single judge.

Legal Issues Presented

1. Whether the sentencing judge erred in finding that grooming behaviour was present in the applicant's conduct.
2. Whether the sentencing judge failed to adequately reduce the sentence to reflect the lengthy and unacceptable delay in bringing the case to trial.
3. Whether the combined effect of the alleged erroneous finding of grooming and the failure to reduce the sentence for delay resulted in a manifestly excessive sentence.

Arguments of the Parties

Appellant's Arguments

• The applicant's counsel conceded that the finding of grooming alone would not constitute an arguable ground of appeal but argued that removing this element would only slightly reduce the starting point for sentencing.
• The main submission was that the sentencing judge failed to reduce the sentence to account for the unacceptable delay in the investigation and trial process, which was described as unexplained and extremely lengthy.
• The delay included an 11-month period prior to the COVID-19 pandemic when no progress was made and a 17-month window where the investigation could have been completed before the pandemic.
• Post-pandemic, the delay was attributed to a 40% loss of courtroom capacity, causing longer adjournments, which counsel argued was comparable to the situation in R v Aire Ali [2023] EWCA Crim 232.

Respondent's Arguments (Single Judge and Court of Appeal)

• The single judge refused permission to appeal, finding the grounds not reasonably arguable.
• The single judge upheld the finding of grooming based on the complainant's evidence and noted that the case involved category A culpability due to breach of trust, making the grooming element only marginally influential on sentencing.
• The single judge acknowledged the delay but noted that delay is not necessarily a mandatory factor in sentencing and that the sentencing judge was aware of the chronology and its impact on the complainant.
• The single judge emphasized the seriousness of the offences and the carefully calibrated sentencing decision.
• The Court of Appeal agreed that the case of R v Aire Ali was not applicable as it concerned prison overcrowding during the pandemic, which differs from delay in trial proceedings.
• Precedents such as R v Beattie-Milligan [2019] EWCA Crim 2367 and R v Timpson [2019] EWCA Crim 1785 were cited to clarify that delay may be considered but does not impose an obligation on courts to reduce sentences, especially where delay arises from contesting the case.
• The Court found no arguable basis that failure to explicitly reference or reduce the sentence for delay rendered it manifestly excessive.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
R v Aire Ali [2023] EWCA Crim 232	Consideration of prison overcrowding during the COVID-19 pandemic as a factor in sentencing.	The Court found this precedent inapplicable to delay in trial proceedings and did not accept it supported a sentence reduction here.
R v Beattie-Milligan [2019] EWCA Crim 2367	Delay in trial may be considered in sentencing but is discretionary and not obligatory.	The Court relied on this to confirm that unjustifiable delay does not mandate a sentence reduction.
R v Timpson [2019] EWCA Crim 1785	Defendants are not entitled to benefit from delay caused by contesting the case; delay must be extraordinary to justify reduction.	The Court used this to support the principle that delay due to contesting charges does not automatically reduce sentence.

Court's Reasoning and Analysis

The Court considered the sentencing judge's findings, including the presence of grooming and severe psychological harm to the complainant, which justified a high culpability category and a substantial sentence. The Court acknowledged the lengthy delay in bringing the case to trial but emphasized that delay is not a mandatory mitigating factor and that the sentencing judge was aware of the chronology and its impact. The Court rejected the appellant's reliance on R v Aire Ali, distinguishing the context of prison overcrowding from trial delay. The Court referred to established authorities confirming that delay may be considered but does not compel sentence reduction, especially where delay is partly attributable to the defendant contesting the charges. In balancing these factors, the Court concluded that the sentence was not manifestly excessive and that the failure to explicitly reduce the sentence for delay was not arguable as an error.

Holding and Implications

The renewed application for leave to appeal against sentence is refused.

The direct effect of this decision is the maintenance of the original sentence of 11 years' imprisonment with a one-year extended licence period. The Court did not establish any new precedent regarding the consideration of delay in sentencing but reaffirmed existing principles that delay is a discretionary factor and that serious offences involving breach of trust and severe harm justify substantial sentences even in the presence of delay.