R v Stephen Brown

This case concerns sexual offending against two children by an offender who has also committed sexual offences against another child. Each of the victims is entitled to the lifelong protection of the provisions of the Sexual Offences (Amendment) Act 1992. Accordingly, during their respective lifetimes no matter may be included in any publication if it is likely to lead members of the public to identify any of them as a victim of these offences.

The offender pleaded guilty to nine offences against a girl, "VF", and two offences against a boy, "VM". For each offence he was sentenced by His Honour Judge Jefferies KC in the Crown Court at Preston to a community order with a requirement as to his place of residence.

His Majesty's Solicitor General believes that sentencing to be unduly lenient. Application is accordingly made, pursuant to section 36 of the Criminal Justice Act 1988, for leave to refer the case to this court so that the sentencing may be reviewed.

We summarise the chronology of relevant events and criminal proceedings.

Between 1991 and 1996 the offender, then aged 22 to 27, committed offences against VF, who was then aged 4 to 7. He abused her whilst trusted to act as her babysitter. He later admitted seven offences of indecent assault, contrary to section 14 of the Sexual Offences Act 1956. They included touching VF's vagina under her clothing, digital penetration, and making her suck his penis after he had put salmon paste onto it. There was a pause in the offending when VF was for a time taken into care. Thereafter, when she was aged 8 or 9, the offender admitted that he had twice raped her, ejaculating onto her stomach or onto the floor. The offending against VF was not reported at the time.

Between 1996 and 2000 the offender, now aged 27 to 31, committed two offences of assault on a male person, "VM", contrary to section 15 of the Sexual Offences Act 1958. The abuse consisted of masturbating VM, who was then aged 8 to 11, whilst showing him pornography. Again, the abuse occurred when the offender was babysitting. It was not reported at the time.

In the year 2000, the offender committed two offences of indecent assault and one of attempted rape against VM's 7 year old sister, "VS". Those offences were reported and the offender was convicted.

The offender (aged 32 at the time of his conviction for the offences against VS) had previous convictions for offences involving violence, disorderly behaviour and dishonesty, but nor for any sexual offence. On 23 March 2001, he was sentenced for the attempted rape to life imprisonment. A minimum term of three years was specified. As we shall see, the offender remained in prison far beyond that period.

Following those convictions, VM told his mother about the offending against him. In 2003 his mother reported it to the police. The Crown Prosecution Service decided that a prosecution would not be in the public interest because the offender was serving his life sentence.

In April 2022, VM, having learned that the offender would soon be released from prison, made a complaint to the police. The offender was interviewed on 20 May 2022. He denied any sexual misconduct against VM.

It appears that the police then began an investigation which revealed the offending against VF. We have been given no information about any interviewing of the offender in respect of those offences.

The offender suffers from a learning disability. He had continued to be detained, pursuant to his life sentence, until 31 July 2022. He was then moved to a home which provides supported living for those suffering from learning disability, autistic spectrum disorder and other associated mental health disorders.

On 23 March 2023 – 22 years after he was sentenced to life imprisonment with a minimum term of three years – the offender was released, subject to the terms of his life licence. He has continued to live in the supported housing to which we have referred.

It was not until 3 April 2024 that the offender was charged, by way of postal requisition, with offending against VM and VF.

On 18 October 2024, the offender pleaded guilty to the offences against VF, which we have summarised. It is common ground – and we agree – that if receiving a custodial sentence for those offences, he was entitled to full credit for his guilty pleas. He did not, however, plead guilty to the offences against VM until the day listed for his trial on those and other charges. Those late guilty pleas would attract credit of no more than ten per cent.

At the sentencing hearing on 8 May 2025, the judge was assisted by written and oral submissions which referred him to all relevant sentencing guidelines and to the decision of this court in R v Green [2019] EWCA Crim 196. The court in that case gave guidance which is now substantially reflected in the Sentencing Council's Totality guideline, which came into effect on 1 July 2023.

The judge had a victim personal statement from VM, but none from VF. He had a report from a consultant psychiatrist, Dr Mir, who assessed the offender as suffering from a mild degree of learning disability. The judge also had two favourable reports about the offender's progress in the supported housing, where he had settled in well to the structure and routine, albeit that there had been a few incidents of aggression towards others in the housing.

The representative of the Probation Service who wrote the most recent of those reports, described the offender as suffering from a significant learning disability and autism. He understood that his offending behaviour was wrong, but could not articulate why that was so. The report suggested a sentence which would allow probation supervision to continue, thus ensuring continuity of care and management of risk.

The judge, in his sentencing remarks, rightly observed that all the offences involved an enormous abuse of trust and significant elements of grooming. He referred to the victim personal statement provided by VM, which made it clear that the offences had had a profound effect on him. Although VF had not provided a statement, the judge said that it was obvious that she, too, had been profoundly affected by the abuse and was now a very troubled person who suffered badly in her mental health.

By reference to the relevant offence specific sentencing guidelines, the judge took the view that a sentence in the region of 20 years' imprisonment would in the ordinary way be appropriate for the offending against VF, with a consecutive sentence of two years' imprisonment for the offending against VM. In the ordinary way, he observed, there would be reductions from those sentences because of the offender's mental health problems, his personal mitigation and the appropriate credit for guilty pleas.

However, this was not a straightforward case of applying the sentencing guidelines, because of the imposition of the life sentence for the less serious offences which had subsequently been committed against VS. The judge encapsulated the problem in this way:

The judge concluded that he must reject the submission of the prosecution that he should have no or only little regard to the long post-tariff period in custody. To do so, in his judgment, would give rise to a real sense of unfairness. The judge pointed out that the offender remained subject to his life sentence and therefore liable to recall at any stage, if appropriate. He was stable in his supported accommodation and the Parole Board had concluded that the risk which the offender presented could be managed in the community. The judge added that it would be very difficult to identify a correct basis on which to determine the length of a custodial sentence. The main point was, he said, "that any determinate sentence that might have been imposed for these offences at the time is already far exceeded by the time you have actually been in custody".

For the Solicitor General, Miss Heer KC has invited our attention to three cases: R v Green, which we have already mentioned, R v Cosburn [2013] EWCA Crim 1815 and R v JWD [2021] EWCA Crim 1191. Miss Heer points to the last of those as an example of a case in which, on different facts, the sentencing judge had given little or no weight to the earlier sentence. This court did not disagree with his approach, but made a comparatively modest reduction in the length of the sentence for the later offences.

Miss Heer accepts in the light of those cases that the sentencing judge had a discretion as to whether and, if so, to what extent he should take into account the earlier life sentence when determining the appropriate sentence for these offences. She submits, however, that as was said in Green at [19]:

In this case, Miss Heer submits that the judge failed to exercise his discretion rationally, in particular because he failed to follow the necessary nuanced approach which required him to consider the factors set out in Green at [8], and now to be found in the Totality guideline, to which we shall return shortly. Miss Heer submits that, by identifying the issue in the case in the terms which we have quoted, the judge effectively reduced himself to a binary choice and failed to consider wider issues. Miss Heer further criticises the judge's observations as to the difficulty of determining the appropriate length of a custodial term for these offences. She submits that the judge should first have identified, as indeed he did, the appropriate overall sentence for these offences, taking into account the offender's mental health disorders, the principle of totality, and appropriate credit for the guilty pleas. The judge should then have considered the impact of the life sentence by reference to all the factors now listed in the Totality guideline. Had he done so, Miss Heer submits, the judge should have concluded that sentences of immediate imprisonment of significant length were required.

Mr Clarke, who represents the offender here as he did in the court below, emphasises that in Green the judge had been concerned with the imposition of a determinate sentence on an offender who had previously received a determinate sentence for similar offending. In the present case, Mr Clarke submits, it is important to keep in mind what the Totality guideline says about the much less common situation where an offender is subject to an earlier indeterminate sentence. The overall principle, Mr Clarke suggests, is that the court should consider what total sentence would have been appropriate if all matters had been dealt with together and to adjust the later sentence to make allowance for the earlier sentence. The extent of that adjustment will depend on the facts of the particular case.

Here, Mr Clarke submits, the judge rightly adopted that approach. Mr Clarke points to the following features. Pursuant to his life sentence, the offender in fact spent 22 years in prison (the equivalent of a determinate sentence of 44 years) for offending which had merited a notional determinate sentence of only six years. Whatever may be the appropriate aggregate sentence for the present offences, viewed in isolation, Mr Clarke submits that it could not justify imprisonment beyond the period of time which the offender has already spent in custody.

As to the criticism of the judge for adopting a binary approach, Mr Clarke suggests that this reflects the terms in which submissions were made in the court below. Prosecuting counsel submitted that the judge should give little or no weight to the earlier sentence. Mr Clarke submitted that full weight should be given to that sentence. For that reason, Mr Clarke suggests that it may be unsurprising that the judge appeared to focus his approach in the way he did.

We are very grateful to both counsel, whose written and oral submissions have been of great assistance.

The judge was faced with a formidably difficult sentencing problem. Neither case law nor the Totality guideline provided guidance addressed to the specific combination of circumstances here.

The Totality guideline includes the following guidance on sentencing for offences committed prior to other offences for which an offender has been sentenced:

The guideline goes on to give guidance in relation to indeterminate sentences. It does not, however, specifically address the unusual situation which exists here, of an offender who is now to be sentenced for offences committed before his later offending which had already resulted in a life sentence from which he has been released on licence.

In such a situation the correct approach, in our view, is for a judge to follow the passage which we have quoted from the Totality guideline and then to take account of the earlier life sentence as part of the overall circumstances of the case. The impact of that earlier sentence on the sentence now appropriate for the present offences will necessarily require a fact-specific assessment.

Before considering whether the judge adopted that approach in the present case, we wish to make an observation about the submission of the Solicitor General that the judge failed to exercise his discretion rationally. Miss Heer put her submission in that way because of the following passage which appears in Green at [19]:

We are confident that the court there was doing no more, with respect, than expressing in different terms the conventional approach, namely, that the question for this court will be whether the exercise of discretion by a judge in a particular case took into account all relevant considerations, was not affected by irrelevant considerations, and was within the range of discretionary decisions properly open to the judge. This is not an application for judicial review. The sentencing remarks of a judge in a criminal case should not be subjected to a minute textual analysis in an attempt to find some basis for asserting irrationality.

Turning to the non-exhaustive circumstances mentioned in the Totality guideline, we make the following observations:

To those non-exhaustive factors must be added the very long period which the offender has spent in custody pursuant to his life sentence. If all the offending had been before the court in 2001, then the minimum term would inevitably have been much longer than it was. But we agree with the judge that it would have been significantly shorter than the 22 years which the offender spent in custody.

Notwithstanding Miss Heer's cogent submissions, we are not persuaded that there is any sound basis for thinking that the offender's ultimate release on licence would have been appreciably later than 2023.

It follows that the period of time which the offender has in fact spent in custody exceeds the longest term which could be considered appropriate by way of punishment, and enabled the Parole Board to reach the stage of finding it safe to release the offender on licence.

There is a further important consequence of the life sentence. The application of the principles stated in the Totality guideline, in circumstances where the offender has served a long period in custody and has been released on life licence, is less straightforward than will usually be the case where the court is concerned only with determinate sentences. Neither the judge, nor this court, has any specific information as to the effect of the continuing life sentence if the offender were now imprisoned and served the appropriate period for the present offences. It seems to us, however – and Miss Heer helpfully accepted – that upon reaching the point when he would otherwise be released from any further sentence, the offender would continue to serve his life sentence and the date of his release would require further consideration over whatever period of time might be necessary, by the Parole Board.

Drawing these threads together, we recognise the force of Miss Heer's submissions as to why a further sentence of imprisonment should be imposed by way of discrete punishment for these earlier offences. We hope that those who are advising VF and VM will be able to explain to them that the offender has not, in truth, gone unpunished for his crimes against them. Further, we accept that not all judges would have resolved the sentencing problem in the way that this judge did. We cannot, however, accept that the judge merely considered one point of a binary nature. Having taken into account all other relevant considerations he was, in our view, right to say that the main point is "that any determinate sentence that might have been imposed for these offences at the time is already far exceeded" by the time the offender has been in custody.

In all the circumstances of this unusual case, we conclude that the judge was entitled to exercise his discretion to take into account the life sentence in the way he did.

For those reasons, we grant the Solicitor General leave to refer, but we are not persuaded that the sentencing was unduly lenient and we dismiss the application. The sentencing of the offender accordingly remains as it was imposed on 8 May 2025.