FBD, R. v

Factual and Procedural Background

Judge Williams delivered the opinion summarising the conviction, sentence and appeal of the Appellant. Following a Crown Court trial before Judge Melville and a jury, on 7 December 2023 the Appellant was convicted of ten offences of Indecent Assault on a Male Person contrary to section 15(1) of the Sexual Offences Act 1956 (on specified counts) and two offences of Indecency with a Child contrary to section 1(1) of the Indecency with Children Act 1960 (on specified counts). The Appellant was acquitted on other counts. On 22 March 2024 the Appellant (then aged 52) was sentenced. The overall disposal originally comprised a standard determinate sentence totalling 14 years' imprisonment and a consecutive Special Custodial Sentence for an offender of particular concern under section 278 of the Sentencing Act 2020 of 18 years (custodial term 16 years and licence 2 years).

The offences were committed between May 1998 and March 2001. The victims comprised two of the Appellant's stepsons and three of their friends; these individuals are referenced in the judgment as Victim 1, Victim 2, Victim 3, Victim 4 and Victim 5 in this summary. The majority of the abuse occurred at the Appellant's home. The sentencing judge also imposed a Restraining Order and a Sexual Harm Prevention Order.

The appeal came before the full court on 27 June 2025. On that occasion the court allowed parts of the appeal on grounds 2, 5 and 6 (quashing the Restraining Order and varying the Sexual Harm Prevention Order accordingly), refused leave on ground 4, and did not pursue ground 3. Leave to appeal was granted on ground 1 (the challenge that the sentence of 32 years was manifestly excessive), and the hearing was adjourned for further written and oral submissions. The opinion before us addresses the resumed appeal on ground 1 and related sentencing issues.

Legal Issues Presented

1. Whether the overall sentence of 32 years imposed on the Appellant was manifestly excessive and therefore should be reduced.
2. Whether the sentencing judge properly accounted for the differences between the statutory maxima applicable at the time of the historic offending (1956 Act and 1960 Act) and the modern equivalent offences under the Sexual Offences Act 2003, applying the approach in R v HJ and the Guideline on Sentencing historical sexual offences.
3. Whether the judge correctly categorised count 14 (the modern equivalent under the 2003 Act) as category 2A (in particular whether a Culpability A factor applied), and the consequences of any mis-categorisation for the starting point and range.
4. Whether the judge correctly applied totality principles when deciding whether certain sentences should run consecutively or concurrently (notably counts 9 and 14 running consecutively), and whether the reductions made for totality were sufficient.

Arguments of the Parties

Appellant's Arguments (Attorney Acworth)

• The sentencing judge failed to give sufficient weight to the difference between the ten-year statutory maxima applicable under the 1956 and 1960 Acts and the higher ranges in modern 2003 Act equivalents; the judge did not adequately apply the necessary adjustment when making "measured reference" to modern guidelines.
• The judge did not take sufficient account of the number of incidents comprised within each count when assessing the overall case; specific concern that counts involving multiple similar incidents (for example count 4 with five incidents) received similar or the same sentences as counts involving fewer incidents or single incidents (for example counts 9 and 14).
• The judge erred in ordering consecutive imprisonment for counts 9 and 14 rather than making them concurrent, such that the overall sentence was disproportionate; the reductions applied for totality were insufficient.
• The judge wrongly categorised count 14 as category 2A (Culpability A), whereas on the modern day equivalent it should have been category 2B with a lower starting point and range; this mis-categorisation should have reduced the sentence for that count.
• Illustrative authorities were cited (R v DJ and R v Jones) to support the submission that cases meriting sentences after trial of around 30 years are of a different order of gravity to the present convictions.

Respondent's Arguments (Attorney Houston)

• Reference to the preamble of the Definitive Guideline for Rape emphasising that offences of sufficient severity, including repeat offending, may justify sentences of 20 years or more; such severity is not confined to "campaign" cases.
• The sentencing judge properly took a very serious view of the Appellant's repeated and sustained offending against five young people, including some offending that would now amount to rape; the aggregate gravity supports a substantial sentence.
• Further illustrative authorities were cited (including JH, Attorney General's Reference (R v GT), R v Horley, and Attorney General's Reference (R v Charnley)) to show that substantial sentences are appropriate in repeat and serious child sexual offending cases and to resist the claim that the sentence was disproportionate.

Table of Precedents Cited

Court's Reasoning and Analysis

The court began by addressing the categorisation and culpability findings for specific counts, especially count 14. It accepted that the sentencing judge could not have intended to find an abuse of trust in relation to Victim 4 where he had indicated there was no abuse of trust in relation to Victim 3, and recognised that grooming is not a Culpability A factor under the rape guideline. The court therefore accepted the Appellant's submission that, in modern day terms, count 14 had a starting point of eight years' imprisonment (category 2B) rather than ten years (category 2A). The court nevertheless noted that other aggravating features (ejaculation, time and location at the Appellant's home, and the previous conviction) could justify an upward move from that starting point.

The court analysed the sentencing exercise in light of the applicable legal framework. It reiterated that the judge was required to sentence according to the statutory maxima at the time the offences were committed but could take measured reference to relevant modern guidelines (per R v HJ and the Guideline on Sentencing historical sexual offences). The parties agreed which modern guidelines were the relevant equivalents for certain counts, and the sentencing judge used those equivalents to identify harm categories, culpability findings and starting points/ranges for the equivalent modern offences.

The court reviewed the specific findings: the judge's categorisation of harm and culpability for Victim 1 (count 4), Victim 2 (count 9), Victim 3 (count 12), Victim 4 (count 14) and Victim 5 (counts 20–22). It noted some points of concern: most notably the absence of an explained basis for Culpability A in respect of count 14 (rape), and the judge's identification of grooming as a Culpability A factor where the modern guideline does not list grooming as such for rape. The court accepted that grooming was a Culpability A factor for some modern equivalents (for the offences equating to sexual activity with a child) but not for rape under the relevant guideline.

The court also evaluated the totality exercise. It observed that the sentencing judge had made reductions to reflect totality (for example, reductions in the sentence he said he would otherwise have imposed on certain counts). Nevertheless, the appellate court accepted that there was force in the Appellant's submission that there was insufficient differentiation between the sentences for single-incident counts (counts 9 and 14) and the multi-incident counts (counts 4 and 21). The court acknowledged the persuasive value of the illustrative authorities relied on by the Appellant showing that cases justifying post-trial sentences of around 30 years are of a different order of gravity.

Balancing these considerations (seriousness and sustained nature of offending, aggravating features, the judge's awareness of the historical sentencing approach, but also the mis-categorisation point and totality concerns), the court concluded that the overall sentence as originally imposed was excessive. The court determined that the appropriate adjustment to achieve a just and proportionate overall disposal was to make the two seven-year sentences on counts 9 and 14 concurrent rather than consecutive, leaving the other sentences undisturbed. This reduced the total determinate custodial calculation and resulted in an aggregate overall sentence of 25 years' imprisonment (effected by the concurrency between counts 9 and 14 while maintaining the consecutive Special Custodial Sentences). The court emphasised that this adjustment did not diminish the seriousness of the offending against Victim 2 and Victim 4.

Finally, the court considered the consequences for the Appellant's eligibility for Parole Board referral and release. It applied section 244A of the Criminal Justice Act 2003 and the relevant statutory provisions on requisite custodial periods for sentences under section 278 of the Sentencing Act 2020. The court explained that the Appellant would be referred to the Parole Board once he had served the aggregate of the custodial elements of the determinate sentence and the Special Custodial Sentences, and it set out how the percentage calculations (50% for the determinate element and two-thirds for the Special Custodial terms) applied to determine the "requisite custodial period" for referral. The court also noted that the Criminal Justice Act 2003 (Requisite and Minimum Custodial Periods) Order 2024 did not alter the 50% figure for the determinate element as the listed offences were excluded from that reduction.

Holding and Implications

APPEAL ALLOWED IN PART: the overall sentence is reduced to 25 years' imprisonment by ordering that the two seven-year sentences imposed on counts 9 and 14 run concurrently rather than consecutively; other sentences are left undisturbed.

Direct effects and implications:

• The Appellant's sentence as adjusted comprises a standard determinate sentence of seven years' imprisonment, consecutive to a Special Custodial Sentence for an offender of particular concern of 18 years (custodial term 16 years and licence period 2 years), yielding an overall custodial framework totalling 25 years.
• The Appellant will be referred to the Parole Board once he has served the aggregate custodial elements of the determinate sentence and the Special Custodial Sentences: (1) 50% of the seven-year determinate sentence (the statutory reduction applicable to the excluded offences does not reduce this), and (2) two-thirds of the aggregate custodial terms remaining undisturbed for the Special Custodial Sentences on counts 4 and 21. The court set out the statutory basis for that calculation (section 244A and related provisions of the Criminal Justice Act 2003 and Sentencing Act 2020).
• On release, the Appellant will serve the additional two-year licence period in the community subject to supervision and conditions; failure to comply may result in recall to custody.
• The court granted a representation order extending to count 1 (noting the prior representation order did not extend beyond certain counts).
• The court emphasised that no new general sentencing principle was being established beyond the application of established approaches (historic sentencing approach, measured reference to modern guidelines, and totality), and that the adjustment made was fact-specific to the aggregate sentencing picture in this case.

This summary has anonymised parties and victims in accordance with the requirements of the Sexual Offences (Amendment) Act 1992 and the court's practice in the opinion.