In a number of unconnected appeals and applications in relation to sentences of imprisonment imposed for historic sexual offences, the court gave the following guidance on the application of Annex B to the Definitive Guideline on Sexual Offences (“the Guideline”) published by the Sentencing Council in 2013 which codified the guidelines set out by the Court of Appeal in R v H [2012] 1 WLR 1416.

(1) The requirement in the Guideline to have regard to any applicable sentencing guidelines for equivalent offences under the Sexual Offences Act 2003 entails not simply the application of a relevant guideline applicable at the date of sentence subject to any lower statutory maximum applicable at the date the offence was committed but, rather, the Guideline is to be used in a measured and reflective manner to arrive at the appropriate sentence. It is important that sentencing judges guard against too mechanistic an approach, either in terms of an equivalent offence or in adopting the figures in the Guideline without having regard to the fact that generally higher maxima are provided for some of the modern day offences. Further, attempts to construct an alternative notional sentencing guideline are to be avoided (paras 8–10).

(2) The sentencing court is only concerned to ascertain the statutory maximum applicable at the date of the commission of the offences and not to ascertain what sentence would have been passed had the offender been convicted shortly after the commission of the offences. However, in rare cases, a broader inquiry may be required, for example where it transpires that at the time of the commission of the offence no form of custodial sentence could have been imposed on the offender in an historic sex offence case. In such cases article 7 of the Convention for the Protection of Human Rights and Fundamental Freedoms, and the common law requirements of fairness, mean that it will not be appropriate to impose a custodial sentence on such an offender (para 13).

(3) The primary concern of the sentencing court is to assess the culpability of the offender and the measure of harm caused to the victim. In so doing, regard is to be had to the relevant aggravating and mitigating factors set out in the Guideline. The court must avoid double counting by bearing in mind that the starting points in the Guideline reflect the essential gravity of the offence in question (paras 14–15, 25–26).

(4) An abuse of trust, described as an aggravating factor in the Guideline, requires something more than the mere fact of an association. The term plainly encompasses, for example, a teacher/student relationship and could also include parental or quasi-parental relationships. However, in each case a careful examination of the facts is called for, and clear justification given if abuse of trust is found (paras 16–18).

(5) While the Guideline refers to immaturity at the time of the offence as a matter going to mitigation, it is better treated as a factor bearing on the culpability of the offender. In making such an assessment it is necessary to consider all the facts and circumstances surrounding the case. In the absence of reliable evidence of the maturity of a particular offender at the date of the commission of the offence, maturity is to be assessed by reference to the maturity of a youth of the offender’s age at the material time (paras 19–21).

(6) When sentencing an adult offender, Part 7 of the original Sentencing Guideline Council Sexual Offences guideline (in relation to sentencing young offenders for offences with a lower statutory maximum under the 2003 Act) will not generally be applicable as it was predicated on the basis that the offender was still a youth. Its relevance is confined only to the emphasis placed on the significance of immaturity at the time of the offending to the assessment of culpability. R v GB [2016] 1 Cr App R(S) 17 should not be followed (para 22).

(7) When assessing the effect, if any, of subsequent good character, it is evidence of positive good character that is of material significance. It is therefore necessary to examine carefully all the circumstances of the offender and the offending (paras 23–24).

(8) In considering the passage of time since the commission of the offences regard is to be had to all the circumstances. Passage of time in cases where there have been threats or other conduct designed to conceal the offending is not a mitigating factor (paras 28–29).

(9) It is the duty of the prosecution to reflect the criminality alleged in the counts on the indictment and, in so doing, to provide the judge with appropriate powers of sentence. Those who draft indictments should consider the use of multiple offending counts to avoid that difficulty when a prolonged course of conduct involving similar abuse is alleged (paras 30–34).

R v GB [2016] 1 Cr App R(S) 17, CA not followed.