The Court of Appeal has found errors in the way a 15-year sentence was structured for a man convicted of sexual offences against three anonymised complainants, and adjourned the case so he could gather material for re-sentencing.
The court did not set a new sentence in its judgment of 19 December 2019. It said the original sentence was within the sentencing judge’s margin of appreciation, but held that the judge had combined general mitigation with the totality assessment instead of applying the required three-stage process.
The appeal arose from convictions for rape and attempted oral rape against B, and guilty pleas to representative counts of sexual assault concerning A and C. The judgment said the offending took place over several years and that the appellant was a stepfather to A and B and the biological father of C. Their identities are anonymised in the judgment.
The appellant argued, among other things, that the sentencing judge gave too little weight to remorse, rehabilitation and personal circumstances, and failed to reduce the aggregate sentence enough. The prosecution submitted that the sentence was warranted and that the judge had properly assessed the case.
The Court of Appeal rejected the challenge to the judge’s assessment of remorse, noting that the guilty pleas concerning A and C were entered after the appellant had been convicted following trial concerning B. It also rejected arguments that the trial conduct should have counted as strong mitigation, that consecutive sentences double-counted aggravating factors, and that the sentencing judge had equated breach of trust with physical violence.
The court explained that the sentencing judge should identify a notional sentence for each victim’s offending, reduce each to reflect mitigation, and then assess whether the cumulative sentence needs a further reduction to remain proportionate. It found that the judge had not separately reduced each victim’s notional sentence for general mitigation and had conflated that allowance with the totality adjustment.
The judgment also said the judge had acknowledged the appellant’s study and work in custody, but had not structured the sentence to incentivise rehabilitation after release. The Court of Appeal said it would re-sentence the appellant after an adjournment to allow him to assemble relevant material.