The Supreme Court has overturned the Court of Appeal’s decision on sentence in a historic indecent assault case and directed that a hearing be arranged to consider the appropriate sentence. It has not yet resentenced the appellant.
The appellant, identified in the judgment as M.J., was convicted by a jury in October 2018 on five sample counts of indecent assault. The offences were alleged to have occurred frequently over about four months in 1978, when the complainant, then about 11, was staying with the appellant’s family in a rural area. The appellant was about ten years older. He continued to deny the offences.
In February 2019, the trial judge imposed five consecutive sentences of 21 months, suspending the final 21 months for three years. The judge considered the offences to be at the high end of the scale because of their impact on the complainant, but concluded there was no realistic scope to reduce the headline sentences for mitigation.
The Court of Appeal later quashed those sentences and imposed five consecutive 21-month terms, suspending the final 33 months. It found that mitigation included the appellant’s youth at the time and that he had not offended in the intervening 40 years. It considered a limited adjustment sufficient.
The Supreme Court held that the Court of Appeal had erred. Justice Iseult O’Malley said an appellate court must consider whether an identified sentencing error is logically connected to other decisions in the sentencing process; an error on one issue does not automatically invalidate separate decisions. But she concluded that neither court below had adequately accounted for the totality principle, which requires the overall sentence to reflect the whole case, including the offender’s culpability and prospects of rehabilitation.
The judgment noted that the sentence as it stood amounted to eight years and nine months when the suspended portion was included. It said that the overall sentence, including any suspended part, must reflect the court’s assessment of the gravity of the case and the accused’s circumstances. The Supreme Court did not decide whether consecutive sentences were necessarily wrong or make a final assessment of the case’s comparative gravity.
The Court proposed fixing a hearing date to receive submissions on the appropriate sentence. The appeal concerned sentence; the earlier conviction appeal had been unsuccessful.