Summary of Opinion by Judge Edis — Court of Appeal (Criminal Division)

Factual and Procedural Background

This is an application by the Solicitor General for leave to refer a sentence to this court under section 36 of the Criminal Justice Act 1988 on the basis that it is unduly lenient.

The convictions under review arose from two sexual offences for which the Defendant was tried and convicted following a retrial. The victims in the two counts are referred to in the judgment as V1 and V2; both are entitled to lifelong anonymity. No material may be published that would identify them.

At a sentencing hearing in December 2024 at the Crown Court (the sentencing judge was Judge Carter), the Defendant was sentenced for:

• Count 4: sexual assault of V1 occurring on 4 July 2021; and
• Count 6: rape of V2 occurring on 5 March 2022.

The judge imposed an aggregate custodial term of nine years and three months' imprisonment (an eight years' sentence for the rape, and a consecutive one year and three months for the sexual assault). The Defendant had been in custody since June 2022 and had previously been subject to earlier proceedings and investigations in respect of other allegations which did not result in conviction; those proceedings contributed to complexity and delay leading to retrials.

The judgment makes clear that the Defendant continued to deny the offences and that the jury rejected his account.

Legal Issues Presented

1. Whether the sentencing judge erred in his guideline categorisation of the sexual assault (count 4) and/or the rape (count 6), producing an unduly lenient sentence.
2. Whether the aggravating and mitigating factors were improperly weighed, such that the overall sentence was unduly lenient.
3. Whether the judge erred in proceeding to sentence without obtaining a pre-sentence report required for assessing dangerousness (notably under section 30 of the Sentencing Act 2020) and whether the judge should have found the Defendant to be "dangerous" (with the consequence of an extended determinate sentence).
4. Whether the total sentence imposed was just and proportionate to reflect the overall offending against two separate victims.

Arguments of the Parties

Solicitor General's Arguments (Attorney Bishop)

• The judge misclassified the sexual assault (count 4) under the sentencing guideline: both prosecution and defence had submitted it was a category 1 harm (with a question as to 1A or 1B), but the judge classified it as category 2B — an error leading to a starting point that was too low.
• The judge gave insufficient weight to serious aggravating factors and disproportionate weight to mitigating factors across both offences; this should have resulted in a significant upwards adjustment to starting points.
• The judge failed to order a pre-sentence report necessary to assess dangerousness, despite the Defendant's relevant previous convictions (including specified violent offending); the conclusion that the Defendant was not dangerous was reached without full information and was therefore flawed.
• The judge failed to impose a total sentence that was just and proportionate to reflect overall offending against two separate victims.

Defendant's Arguments (Attorney Bright and Attorney Devi)

• At sentencing before the Crown Court, defence and prosecution counsel had submitted to the judge that the sexual assault should be treated as category 1 harm; the judge nevertheless reached a different classification.
• Mitigation included material demonstrating efforts at rehabilitation, character references, educational achievements and evidence of mental health support since release from an earlier substantial sentence; counsel pressed these matters in mitigation at sentencing.
• The Defendant continued to deny responsibility for the offences (defence at trial was that the allegations were malicious and linked to other disputes), which was a matter the sentencing judge noted when assessing dangerousness and remorse.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Attorney General's Reference No 145 of 2006 [2007] EWCA Crim 692	Explains the statutory obligation and approach when considering dangerousness and the role of pre-sentence reports: while in extreme cases the risk may be clear, in most cases the court will need help from the Probation Service.	The court relied on this authority to emphasise that the obligation to obtain a report is real and that courts ordinarily need Probation input when assessing dangerousness.
Attorney General's Reference (R v O'Rourke) [2021] EWCA Crim 1064; [2022] 1 Cr App R(S) 29	Emphasised the critical significance of a pre-sentence report when a court concludes that a defendant who has committed a qualifying serious offence is not dangerous; cautioned about the difficulty for the Court of Appeal in reviewing such cases where a report was not obtained.	The court applied the O'Rourke principle to conclude that the failure to obtain a pre-sentence report was an error in principle and that the absence of such a report constrains the review court's ability to re-assess dangerousness using fresh material on a Reference.

Court's Reasoning and Analysis

The court analysed the case in two interrelated strands: (1) guideline categorisation and totality leading to assessment of whether the aggregate sentence was unduly lenient; and (2) whether the judge should have ordered a pre-sentence report and found the Defendant to be dangerous.

On guideline categorisation and sentence quantum:

• Rape (count 6): the court held that the sentencing judge's categorisation (category 2B) for the rape offence was within the range properly open to him, given the violence and severe psychological harm to V2.
• Sexual assault (count 4): the court concluded the judge had made a clear error in categorising this offence as category 2B. Both counsel before the judge had properly treated it as category 1, because the facts involved a clear act of abduction (driving V1 to a secluded car park against her will and sexually assaulting her). The court determined the correct classification was category 1B rather than category 2B; it rejected the Solicitor General's further submission that it should have been category 1A, accepting the judge could treat alcohol as not directly facilitating the offence.
• The corrected starting point for the sexual assault would therefore have been two and a half years' imprisonment (category 1B). The court then considered totality principles: the sentencing judge adjusted sentences for totality to reach the aggregate term, and although the court regarded the sentencing judge's approach as flawed in parts, the resulting total sentence of nine years and three months was not so unduly low as to warrant interference.

On pre-sentence report and dangerousness:

• The court reviewed the statutory requirement in the Sentencing Act 2020 (section 30 of the Sentencing Act 2020 and section 30 of the Sentencing Code were cited) and the authorities (including Attorney General's Reference No 145 of 2006 and O'Rourke) emphasising the importance of obtaining a pre-sentence report before forming an opinion that a defendant who has committed qualifying offences is not dangerous, unless the court explains why such a report is unnecessary.
• The sentencing judge did not formally decide that a report was unnecessary, nor did he explain why he proceeded without one. The court held that a pre-sentence report ought to have been ordered here, given the Defendant's relevant previous convictions and the recent expiry of licence from a substantial sentence such that probation information would be material to a dangerousness assessment.
• The court emphasised that prosecuting counsel also has an obligation to assist a court when a judge proposes to sentence without a pre-sentence report in circumstances where section 30 applies; where the judge proposes to determine dangerousness without a report, prosecution should ordinarily draw the court's attention to the statutory requirements.
• Despite this error, the Court of Appeal faced the legal constraint that, on a Reference, it must assess whether the sentence was unduly lenient on the material that was before the sentencing judge. The court could not rely on the fresh pre-appeal probation report when deciding whether the judge's failure to find dangerousness made the sentence unduly lenient. Looking at the material the sentencing judge did have (including observations of the Defendant at trial and the prior convictions), the court concluded that although the matter was finely balanced, the sentencing judge's decision that the Defendant was not dangerous was open to him on the material before him.

Holding and Implications

Core Ruling: The Court granted leave to the Solicitor General to bring the application, but declined to interfere with the sentences imposed by the sentencing judge.

Consequences and immediate effects:

• The aggregate custodial sentence of nine years and three months' imprisonment imposed by Judge Carter remains in force.
• The court found that the sentencing judge had erred in classifying the sexual assault (count 4) as category 2B rather than category 1B, and that a pre-sentence report ought to have been obtained before reaching a conclusion that the Defendant was not dangerous. Nonetheless, on the material before the sentencing judge the decision not to find the Defendant dangerous was one open to the judge and the aggregate sentence was not so unduly lenient as to justify increasing it on this Reference.
• The judgment stresses the procedural implication that Crown Courts should ordinarily secure all relevant material (including pre-sentence reports where section 30 applies) before determining dangerousness, and that prosecutors should draw the court's attention to the need for such reports where appropriate. The court noted the practical difficulty that the Court of Appeal faces when asked to review a sentencing decision made without a pre-sentence report.
• No new binding principle of law was established beyond applying and reinforcing existing authorities (the court applied existing precedent and statutory requirements rather than creating a new precedent). The ruling therefore leaves the immediate sentencing outcome unchanged but clarifies and reinforces the application of established procedural obligations concerning pre-sentence reports and dangerousness assessments.

Note: This summary is strictly limited to information contained in the provided opinion. Where the opinion did not supply specific additional material (for example, the full content of any pre-appeal probation report), that material has not been included.