Taylor, R. v

Factual and Procedural Background

This opinion records a hearing of an application for leave to appeal against sentence which had been referred to the Full Court by the Registrar because of issues relating to the structure of the sentence imposed under section 278 of the Sentencing Act 2020. Judge Dingemans delivered the court's opinion after hearing submissions from Attorney Benthall and Attorney Potts. Attorney Benthall raised two distinct grounds of appeal in addition to the point identified by the Registrar.

On 25 June 2024, at the Crown Court at The City, following a trial before Judge Levett and a jury, the Appellant (then aged 56) was convicted of a number of sexual offences against two victims (referred to in the trial as Complainant 1 and Complainant 2). Those complainants have life-long anonymity by virtue of the Sexual Offences (Amendment) Act 1992. Some counts attracted no evidence and one count was ordered to lie on the file.

On 28 September 2024, before the same judge, the Appellant was sentenced to an aggregate term which the court recorded as 20 years' imprisonment plus a 2-year licence period. The calculation and structure of that aggregate sentence gave rise to the Registrar's concerns and is the principal reason the matter was referred to the Full Court.

Relevant factual summary (as found by the jury)

The offences occurred between 1999 and 2003. The two complainants were brothers. The Appellant was a friend and colleague of their stepfather; there were domestic difficulties between the stepfather and the children’s mother. At the relevant times Complainant 1 was aged between 12 and 15 (so under 16) and Complainant 2 was aged between 10 and 12 (so under 13).

The Appellant visited the family home, developed a friendship with the children, and on occasions the children stayed overnight with him. The jury accepted both complainants' accounts. In summary:

• Complainant 1 described repeated sexual touching (including mutual masturbation and ejaculation), progression to oral sex (including the Appellant performing oral sex and encouraging reciprocation), and instances of anal sexual activity (both penetration by and of the Appellant). These acts occurred over a period and sometimes in circumstances where other family members were present in the house.
• Complainant 2 described the Appellant being naked in the house, being touched and encouraged, shared baths, and oral sexual activity including the Appellant performing oral sex and encouraging Complainant 2 to reciprocate. Complainant 2 recalled at least one instance (count 19) in which he was encouraged to penetrate the Appellant's anus with his fingers.
• The offending came to light around 2016 after disclosure within the family and subsequent reports to the police.

The sentencing judge had a pre-sentence report demonstrating the Appellant's continued denial of the offending. Victim personal statements were available to the judge and considered by the Full Court on appeal.

Legal Issues Presented

1. Whether leave to appeal should be granted and the sentence restructured because the sentencing structure as imposed conflicted with the requirements of section 278 of the Sentencing Act 2020 (the interaction between determinate sentences and special custodial sentences with extended licence periods).
2. Whether the judge was wrong to make count 19 (relating to Complainant 2) consecutive to counts 15–18, producing a sentence that was manifestly excessive because it did not properly take account of differences between the offending against Complainant 1 and Complainant 2.
3. Whether the sentencing judge failed to give proper weight to the Appellant's good character/exemplary conduct as mitigation.

Arguments of the Parties

Appellant's Arguments (Attorney Benthall)

• The judge erred in making count 19 consecutive to counts 15–18 because that produced a sentence that was manifestly excessive and failed to take account of the relevant differences between the offending against Complainant 1 and Complainant 2.
• The sentencing judge gave insufficient weight to the Appellant's good character/exemplary conduct.
• These points were elaborated in written advice provided to the court by Attorney Benthall (the written advice was described as very helpful by the court).

Respondent's Arguments (Attorney Potts)

• The trial judge (Judge Levett) was best placed to assess and determine a fair and proportionate sentence, and, subject to any necessary restructuring under the Sentencing Act 2020, the original sentence was not wrong in principle nor manifestly excessive.
• As a factual and legal point, if count 19 were updated against current guideline entries for inciting sexual activity with a child under 13, the appropriate starting point would be 8 years with a range of 5–10 years, and the judge’s imposition of 5 years consecutive did not amount to manifest excess when viewed against that framework.

Table of Precedents Cited

No precedents were cited in the provided opinion.

Court's Reasoning and Analysis

The court addressed the grounds in turn and explained the legal principles that informed its decision.

1. Good character

The court referred to the offence-specific guideline (as applied to rape and mirrored for other sexual offences) which distinguishes previous good character/exemplary conduct from the mere absence of previous convictions and states that, generally, the more serious the offence the less weight such character should be given. The guideline further provides (the "starred" passage) that if previous good character/exemplary conduct was used to facilitate the offence, the mitigation should not normally be allowed and such conduct may even be aggravating.

"… previous good character/exemplary conduct is different from having no previous convictions. The more serious the offence, the less the weight which should normally be attributed to this factor. Where previous good character/exemplary conduct has been used to facilitate the offence, this mitigation should not normally be allowed and such conduct may constitute an aggravating factor."

The court recorded that there was nothing to suggest the Appellant's previous good character had been used to facilitate the offending. It accepted that the Appellant had positive character and exemplary conduct in his career, but emphasised the duty to follow the offence-specific and Sentencing Guidelines unless doing so would not be in the interests of justice. On the material before it, the court concluded that the sentencing judge had taken proper account of the Appellant's character and had given it measured regard. Accordingly the ground based on insufficient weight to good character failed.

2. Manifest excess / count 19 consecutiveness

The court acknowledged the factual point that the offending against Complainant 1 was more extensive than that against Complainant 2 and accepted that the judge's task was to reach an overall sentence that was just and proportionate and which recognised the immense harm to both complainants. The court accepted Attorney Potts' submission that, with current guideline consideration (inciting child sexual activity with a child under 13), the appropriate starting point would be 8 years with a range of 5–10 years; the judge's imposition of 5 years consecutively for count 19 (when contrasted with the aggregate for counts 15–18) did not lead to a manifestly excessive sentence in principle. On that basis the complaint that the sentence was plainly excessive failed on its merits.

3. Section 278 structure error and consequential adjustment

The court returned to the structural problem identified by the Registrar under section 278 of the Sentencing Act 2020. The court held that the sentencing judge had fallen into error in relation to the form in which the sentences were structured. The court explained that section 278 requires special custodial sentences for offenders of particular concern and that such sentences consist of an appropriate custodial term together with a further period (here, 1 year) during which the offender is subject to licence.

To give effect to the sentencing judge’s overall intention (the court described the 20 years' imprisonment with a 2-year licence period as just and proportionate), and without increasing the sentence, the Full Court restructured the determinate and special custodial sentences so as to avoid unlawful or unintended overlap between a determinate sentence that was concurrent and an extended licence period attached to a special custodial sentence.

The court's precise adjustments (explained step by step) were:

• Reduce the sentence on count 10 (originally an 11-year determinate sentence for rape) to a determinate sentence of 10 years and make that the lead determinate sentence for Counts 1–12.
• Make all sentences on Counts 1–12 concurrent with that amended count 10 sentence, except count 6 (which had been imposed as a special custodial sentence of 4 years' custody with a 1-year extended licence).
• Quash the sentence on count 6 and replace it with a 1-year custodial term plus a 1-year extended licence, to run consecutively to the amended count 10 (thus preserving the appropriate effect of an extended licence while removing the impermissible overlap).
• As a result, for Complainant 1 the effective term remains 11 years' imprisonment plus a 1-year extended licence (the court expressly stated the amended sentence on count 6 was appropriate having regard to totality and structure).
• For Counts 15–19 (Complainant 2), take count 19 (a determinate sentence of 5 years) as the lead determinate sentence. Make counts 15 and 17 concurrent to count 19. Make counts 16 and 18 consecutive to count 19 (where counts 16 and 18 are the special custodial 4-year terms with a 1-year extended licence).

The court recorded that these structural amendments were intended to give effect to the sentencing judge's overall intention (the aggregate of 20 years with a 2-year licence period) without increasing the sentence and to cure the error under section 278. To that extent the appeal succeeded.

4. Other observations

The court noted material provided by Attorney Benthall indicating that the Appellant had made exceptional progress in custody and had assisted others in prison. The court emphasised these matters post-dated the sentencing and did not render the original sentence wrong in principle or manifestly excessive.

Holding and Implications

LEAVE TO APPEAL GRANTED IN PART; SENTENCE AMENDED

Core holding:

• The court granted leave to appeal and allowed the appeal in part on the basis that the sentencing judge had erred in the structural formulation of the sentences under section 278 of the Sentencing Act 2020. The court restructured the determinate and special custodial sentences as described above to remove the overlap while not increasing the overall sentence.
• The grounds asserting manifest excess (insofar as based on the consecutiveness of count 19) and insufficient weight to good character were rejected in principle by the Full Court.

Immediate consequences for the parties (direct effects):

• The sentence on count 10 was reduced from 11 years to a determinate 10 years and made the lead determinate sentence for Counts 1–12.
• The previous special custodial sentence on count 6 (4 years plus 1-year extended licence) was quashed and replaced with a 1-year custodial term plus a 1-year extended licence, to run consecutively to the amended count 10. The Appellant's effective sentence for Complainant 1 thus remains an aggregate of 11 years' imprisonment with a 1-year extended licence in place for part of that period (as restructured by the Full Court).
• For Complainant 2, count 19 (5 years determinate) was taken as the lead determinate sentence, with counts 15 and 17 concurrent and counts 16 and 18 made consecutive (counts 16 and 18 being the 4-year special custodial terms with 1-year extended licence).
• The adjustments were made so as to preserve the sentencing judge’s overall intended effect (the court described the total as 20 years with a 2-year licence period) while ensuring compliance with section 278. The court expressly sought to avoid any increase in the sentence.

Broader implications:

• The decision is procedural and corrective in character: it addresses the proper structure and interaction of determinate sentences and special custodial sentences under section 278. The opinion does not purport to establish new legal precedent beyond the application of the Sentencing Act and existing sentencing guidance.
• No case law precedents were cited in the opinion.

Note: All individual names and identifying particulars from the source opinion have been replaced with consistent anonymised placeholders in this summary (e.g., "Appellant," "Complainant 1," "Complainant 2," "Judge [Last Name]," "Attorney [Last Name]," and "The City") to preserve confidentiality in accordance with the instructions provided.