(Practice Note) The court considered the principles to be applied when sentencing for offences brought to justice only many years after being committed.
Held: The key to the sentencing exercise is to assess the harm from the offending and the culpability of the offender, taken with what are now specified aggravating and mitigating factors, while always bearing in mind the statutory maximum at the relevant time. The Court emphatically warned against trying to work-out the likely sentence if the offender had been convicted shortly after the date of the offence.
The court summarised the principles: ‘(a) Sentence will be imposed at the date of the sentencing hearing, on the basis of the legislative provisions then current, and by measured reference to any definitive sentencing guidelines relevant to the situation revealed by the established facts.
(b) Although sentence must be limited to the maximum sentence at the date when the offences were committed, it is wholly unrealistic to attempt an assessment of sentence by seeking to identify in 2011 what the sentence for the individual offence was likely to have been if the offence had come to light at or shortly after the date when it was committed. Similarly, if maximum sentence had been reduced, as in some instances, for example theft, they have, the more severe attitude to the offence in the earlier years, even if it could be established, should not apply.
(c) As always, the particular circumstances in which the offence was committed and its seriousness must be the main focus. Due allowance for the passage of time may be appropriate. The date may have a considerable bearing on the offender’s culpability. If, for example, the offender was very young and immature at the time when the offence was committed, that remains a continuing feature of the sentencing decision. Similarly, if the allegations had come to light many years earlier, and when confronted with them, the defendant had admitted them, but for whatever reason, the complaint had not been drawn to the attention of, or investigated by, the police, or had been investigated and not then pursued to trial, these too would be relevant features.
(d) In some cases it may be safe to assume the fact that, notwithstanding the passage of years, the victim has chosen spontaneously to report what happened to him or her in his or her childhood or younger years would be an indication of continuing inner turmoil. However, the circumstances in which the facts come to light varies, and careful judgment of the harm done to the victim is always a critical feature of the sentencing decision. Simultaneously, equal care needs to be taken to assess the true extent of the defendant’s criminality by reference to what he actually did. And the circumstances in which he did it.
(e) The passing of the years may demonstrate aggravating features if, for example, the defendant has continued to commit sexual crime or he represents a continuing risk to the public. On the other hand, mitigation may be found in a non-blemished life over the years since the offences were committed, particularly if accompanied by evidence of positive good character.
(f) Early admissions and a guilty plea are of particular importance in historic cases. Just because they relate to facts which are long past, the defendant will inevitably be tempted to lie his way out of the allegations. It is greatly to his credit if he makes early admissions. Even more powerful mitigation is available to the offender who out of a sense of guilt and remorse reports himself to the authorities. Considerations like these provide the victim with vindication, often a feature of great importance to them.’
Baron Judge LCJ, Royce, Macur JJ
[2012] EWCA Crim 1113, [2012] WLR(D) 12, [2012] 1 WLR 1416, [2012] Crim LR 149, [2012] 2 All ER 340, [2012] 2 Cr App R (S) 21
Bailii, WLRD
England and Wales
Cited by:
Cited – Clifford, Regina v CACD 7-Nov-2014
The defendant appealed against his sentence to eight years imprisonment on 8 counts of indecent assault. The offences occurred between 1977 and 1984.
Held: Each of the victims was young and vulnerable and the assaults had had continuing . .
Lists of cited by and citing cases may be incomplete.
Criminal Sentencing
Leading Case
Updated: 02 November 2021; Ref: scu.465610