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Rape and Sexual Offences - Chapter 13: Sentencing

This guidance is currently out for consultation - see sidebar|Legal Guidance, Sexual offences

PLEASE NOTE - INTERIM GUIDANCE: APPLIES FROM 1 NOVEMBER 2020

Key points

The Sentencing Guidelines Council has published a Definitive Guideline on the Sexual Offences Act 2003, which applies to all offenders aged 18 years and over who are sentenced on or after April 1 2014.

The Guideline is based on the guideline judgment on Rape, Millberry and Others (2003) 2 Cr. App. R. (S) 31 and provides a statement of the applicable principles of sentencing for offences committed pursuant to the Sexual Offences Act 2003  The guideline  specifies sentencing ranges for different offences, different categories to reflect varying levels of seriousness and starting points from which the sentence can be calculated. The starting points are based on adult offenders. 

Advocates should address the sentencing judge with reference to the Sentencing Guideline in all cases, which fall to be sentenced, identifying the appropriate category of offence by the culpability and harm factors present in the case.

The Court of Appeal considered the Definitive Guideline on the Sexual Offences Act 2003 in R v Hanrahan [2018] EWCA Crim 438. In view of the gravity of the instant offending and the defendant’s previous convictions for sexual offences the court held that a life sentence was justified. The court also held that a sentence that was twice that indicated by the sentencing guideline was also justified save that the term would be reduced slightly from 9.5 to 8.5 years.

Sentencing Non Recent cases of Sexual Offending

Since the leading case of R v H and others [2012] 2 CAR(S) 21, the principles of which are now included at Annex B of the Sentencing Council’s Definitive Guidelines, a convicted defendant must be sentenced according to current regimes and guidelines. The only matter of importance from the time the offence was committed is that the sentence must restricted to the maximum as it then was.

The approach to be adopted was clarified in the case of R v Forbes and others [2016] EWCA Crim 1388. This is a decision of the Special Court (featuring nine conjoined appeals) which dealt with a number of issues in relation to sentencing for historic sexual offences.

This case does not fundamentally alter the principles of R v H but:

  • The Court emphasised that the phrase “have regard to” in paragraph 3 of Annex B was intended to make it clear that the judge should not simply apply the relevant guideline applicable at the date of sentence, subject to any lower statutory maximum sentence applicable at the date the offence was committed, but use the guideline in a measured and reflective manner to arrive at the appropriate sentence. The court should not simply apply in a mechanistic way guidelines premised on much higher maximum sentences [see: paragraphs 6 to 11]
  • In some cases, the court may have to look at more than one guideline for an equivalent offence to arrive at the correct sentence [see: paragraph 12].

Sentencing non-recent offences committed whilst the offender was a youth.

R v Forbes confirmed the correct approach to dealing  with the immaturity of the offender when determining sentence was to follow the approach in R v H which expressed the view that immaturity goes to culpability over the principle expressed in paragraph 9 Annex B of the Guidelines.

When sentencing an adult for offences committed whilst a youth, the Youth Guidelines Overarching Principles and Part 7 (link) of the original Sentencing Guidance Council Sexual offences guideline (in relation to sentencing young offenders for offences with a lower statutory maximum sentence under the 2003 Act) do not apply.  See R v Forbes paragraphs 19 - 22.

R v Forbes also considered the relevance of good character since the offence at paragraphs 23 – 24, the assessment of the harm caused to the victim  at paragraphs 25 – 27 and the relevance of the passage of time in paragraphs 28 – 29.

Dangerous Offenders

Rape and other specified sexual offences are listed in Part 2 of Schedule 15B Criminal Justice Act 2003 and therefore qualify for consideration of dangerousness when a defendant is sentenced

An offender is dangerous if: “the court is of the opinion that there is a significant risk to members of the public of serious harm occasioned by the commission by him of further specified offences”.

The Dangerous Offender provisions of the Criminal Justice Act 2003 were amended by the Legal Aid Sentencing and Punishment of Offenders Act (LASPO) 2012. The amendments abolished the sentence of Imprisonment for Public Protection (IPP) and  established a new framework for dangerous offenders. The case of R v Burinskas and Others [2014] EWCA Crim 334 sets out the approach to be adopted under the amended provisions.

See Also Legal Guidance - Sentencing Dangerous Offenders

Special Custodial Sentences for Offenders of Particular Concern

From 13th April 2015, section 6 of the Criminal Justice and Courts Act 2015 introduced a new section (section 236A) into the Criminal Justice Act 2003, which created a new form of custodial sentence known as special custodial sentences for offenders of particular concern. For all qualifying offences, the court will impose a further licence period of one year in addition to the appropriate custodial sentence.

The section applies to someone convicted of an offence listed in schedule 18A to the Act, who was

  1. aged 18 or over when the offence was committed, and
  2. is not sentenced to life imprisonment or an extended sentence under Section 226A.

The Act applies irrespective of when the offence was committed and applies to offences under section 5 Sexual Offences Act 2003 (rape of a child under 13) or section 6 (assault of a child under 13 by penetration)  and any penetrative offences which although abolished by subsequent legislation would have been the equivalent of section 5 or 6 offences. It therefore includes any non-recent offences under the Sexual Offences Act 1956 which would now be charged as section 5 or 6 offences, if sentenced on or after 13th April 2015 and the offender was over 18 years.

The Court in the case of R v LF [2016] EWCA Crim 561 sets out a useful checklist at paragraph 27 and provides guidance for sentencing multiple offences.

Further reading

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