Burton, R. v

Factual and Procedural Background

The appellant, aged 57 at the time of sentencing and 58 at the time of this appeal, pleaded guilty at trial to three counts of historic child sexual offences committed in the 1980s. These offences involved indecent assault on three separate male complainants, each under 10 years old at the time, and occurred when the appellant was between 19 and 23 years old. The offences involved the appellant pulling down the trousers of the victims and rubbing his erect penis against their bottoms without penetration. The incidents took place in private settings, including the appellant's car and a bedroom, where the appellant was entrusted with the care of the children by responsible adults. The appellant was sentenced to five years and ten months' imprisonment on each count, to run concurrently, by Recorder Fowler at Stafford Crown Court on 31 May 2024. The appellant appealed the sentence on the grounds that it was manifestly excessive.

Legal Issues Presented

1. Whether the sentencing judge erred in using the sentencing guideline for sexual assault of a child under 13 (section 7 of the Sexual Offences Act 2003) rather than the guideline for sexual activity with a child (section 9 of the same Act) as the modern equivalent offence for historic indecent assault convictions.
2. Whether the sentence of five years and ten months on each count was manifestly excessive given the appellant’s mitigating factors and the principles of totality.
3. The appropriate weight to be given to mitigating factors including the appellant’s age at the time of offending, lack of previous convictions, positive conduct during imprisonment, and the nature of the offences.

Arguments of the Parties

Appellant's Arguments

• The court should have sentenced by reference to the guideline for sexual activity with a child (section 9 of the Sexual Offences Act 2003), agreed by both Crown and defence as the correct modern equivalent, which carries a lower starting point and sentencing range.
• The sentencing judge erred by applying the guideline for sexual assault of a child under 13 (section 7), which has a higher starting point and sentencing range.
• The judge gave insufficient weight to mitigating factors such as the appellant’s lack of previous convictions, his age at the time of the offences, and his positive conduct during imprisonment, including engagement with rehabilitation and work placements.

Table of Precedents Cited

No precedents were cited in the provided opinion.

Court's Reasoning and Analysis

The court confirmed that the provisions of the Sexual Offences (Amendment) Act 1992 apply to protect the identity of victims in sexual offence cases. The court accepted that although the Crown and defence had agreed that the equivalent modern offence was sexual activity with a child under section 9 of the Sexual Offences Act 2003, the sentencing judge was entitled to use the guideline for sexual assault of a child under 13 (section 7) as the nearest modern parallel. This was appropriate because all victims were under 13 years old and the offending involved no sexual activity by the child but was wholly non-consensual.

The court noted the judge’s sentencing remarks were brief and did not fully explain the calculation of the notional sentence before credit for the guilty plea. However, the judge properly considered aggravating factors such as the number of victims, the element of trust, the impact on victims, and the period over which the offences occurred. The judge also took into account mitigating factors, including the appellant’s age at the time of offending and his conduct since, but correctly limited the weight given to previous good character and exemplary conduct, in line with sentencing guidelines.

The court acknowledged some ambiguity in the judge’s reference to maximum sentences under the guidelines but accepted this was likely shorthand for the comparative exercise required in historic cases. The court emphasized that the judge was entitled to impose concurrent sentences with a significant downward adjustment for totality, and that the notional sentence of six and a half years before credit was within a reasonable range.

The court further reasoned that even if the starting point should have been adjusted downward, a sentence of less than three years for a single offence would not have been justifiable given the facts. The court observed that consecutive sentencing was an available option, and the total effective sentence imposed was therefore not excessive.

Holding and Implications

The court DISMISSED the appellant's appeal against sentence, holding that the sentence imposed was not manifestly excessive.

The decision confirms that sentencing judges have discretion to select the most appropriate modern equivalent offence guideline in historic sexual offence cases, including where the agreed equivalent differs. It affirms the principle that mitigating factors such as good character and positive conduct post-offence should be given limited weight in such cases. The ruling has no broader precedent beyond the direct effect of upholding the sentence in this case.