Forbes & Others, R v

A sentencing judge should have regard to the guidelines, applying them in a measured and reflective manner with reference to the maximum sentence at the time of the offence.

This appeal involved a number of cases raising related issues in respect of sentencing for historic sexual offences.

The Court of Appeal (the Court) wished to restate and explain the sentencing principles from R v H [2011] EWCA Crim 2753 which have been codified in annex B of the Definitive Guideline on Sexual Offences.

The following principles required re-stating:

Contained in paragraphs 1-3 of annex B

The offender must be sentenced in accordance with the regime applicable at the date of sentence.

The sentence that can be passed on the offender is limited to the maximum sentence available at the date of the offence (unless the maximum has been reduced).

The court should have regard to any applicable sentencing guidelines for equivalent offences under the Sexual Offences Act 2003.

The Prosecution submitted that a sentencing judge should simply select the applicable current guideline and sentence in accordance with that guideline, applying a cap consistent with the maximum sentence for the particular offence at the time it was committed, if necessary. That submission was rejected.

Held

The sentencing court should identify the relevant current guideline and determine the sentence having regard to that guideline but adjusting downward to reflect the lower maximum in a reflective non-mechanistic way.

But the judge should not attempt to construct an alternative notional sentencing guideline.

There will be occasions when the court should look at more than one guideline in order to arrive at the appropriate sentence.

In rare cases a broader inquiry may be necessary beyond simple reference to the maximum sentence at the time of the offence.

The Court also gave guidance on the following:
Culpability – Avoid double counting where starting points already include key features of gravity.

Abuse of trust – Mere association is not enough: teacher/pupil, parent or quasi parent/ child are some examples of the sort of relationship required.

Immaturity – This is best considered within culpability, not personal mitigation, contra para 9 of annex B.

Good character since offending – Careful examination is required and the more serious the offending the less relevant.

Harm – To aggravate a sentence there must be significantly more harm than would be expected, to avoid double counting.

Passage of time – Needs to be considered carefully including the defendant's conduct towards the complainant, which may have delayed a complaint.

Specifying criminality in the indictment – The prosecution need to consider the use of multiple offending counts in appropriate cases.

Section 236A of CJA 2003 – Where applicable the judge should impose the additional period of licence.

The appeals against sentence were variously allowed and dismissed.