SENTENCING

A judge had erred in focusing on the risk an offender posed to the public, rather than the seriousness of the offences, when imposing what was in effect a whole life order for multiple counts of rape and further counts of kidnapping and causing grievous bodily harm with intent. The very high test of exceptionality for whole life orders had not been fulfilled but, given the aggravating features of the case, a notional determinate sentence beyond the sentencing guideline range was justified.

The creation of indecent pseudo images of children, by superimposing photographs of a child’s head onto photographs of naked adults in indecent poses, constituted possession, and not production, of indecent photographs of children within the sentencing guidelines. Production offences did not include those where pseudo images were made using images taken from other sources. A sentence of two years’ imprisonment imposed on an offender of previous good character was reduced to a five-month suspended sentence with a requirement to attend a sexual offences treatment programme.

A determinate sentence of two years was appropriate in the case of a 27-year-old man who had pleaded guilty to engaging in sexual activity with a 15-year-old girl.

An extended sentence of 39 years, with a custodial term of 33 years, imposed in respect of a very large number of serious sexual offences against young girls was manifestly excessive; the appropriate custodial term was 30 years. The judge had also erred in adding up the consecutive sentences to reach the overall custodial term before imposing an extension period on the total: it was the overall extended determinate sentences that had to be consecutive, not just the custodial terms.

A multiple-counts indictment under the Criminal Procedure Rules 2014 r.14.2(2), which allowed multiple instances of similar offences to be charged as a course of conduct, would not be properly drafted unless it specified a minimum number of occasions on which the offending was alleged to have happened. Otherwise, where a defendant was convicted on such an indictment, a sentencing judge could not know how many times the jury believed the offence to have been committed, and fairness would require him to sentence on the basis that it was more than once, but no more than twice.

An application for a writ of habeas corpus by a prisoner who had been sentenced to imprisonment for public protection when his offence pre-dated the coming into force of the Criminal Justice Act 2003 failed. The sentencing judge had had competent jurisdiction to direct both imprisonment and a minimum term. Her order could not, therefore, be ignored as a suspected nullity; it had to be obeyed unless and until it was set aside on appeal.

A judge had not erred in imposing a sentence of imprisonment for public protection on an offender following his guilty pleas to a number of sexual assaults of children under 13. The imposition of an extended sentence, coupled with a sexual offences prevention order, would not have enabled an assessment to be made before release of the success or otherwise of any sex offender programme or other work undertaken in reducing the risk the offender presented.

A total sentence of five years’ imprisonment imposed following guilty pleas to making indecent images of children, distributing indecent images of children, possessing extreme pornographic images and causing a child to engage in sexual activity was reduced to four years. The sentencing judge had failed to categorise properly the nature of the defendant’s activity relating to the imagery in accordance with the relevant sentencing guidelines, in particular that he had simply downloaded the majority of the indecent photographs rather than participating in their production.

A suspended sentence which had been imposed on a man who suffered from Tourette’s syndrome and other disorders following his plea of guilty to rape was unduly lenient; however, given his very positive attitude to the suspended sentence order, which had been coupled with a supervision requirement, it would not be appropriate to interfere with the sentence.