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This is a short addendum ruling correcting an error in sentencing within the main judgment reported at [2024] NICC 30 . Determinate custodial sentences were replaced with extended custodial sentences where necessary
[2024] NICC 36 O'Hara J
GENERAL
1. Deterrence means discouraging the offender before the court, and others, from committing offences of the kind in question and/or more generally: paras [8] – [9]
2. Every sentence has an inbuilt element of deterrence (the concept of “general deterrence”): paras [8] – [9] & [11]
3. In some cases the sentencing court may decide that deterrence of the offender and/or the public, in the sense explained in [1] above, requires particular emphasis, the consequence being that a punishment more punitive than would otherwise be merited may follow (the concept of “particular deterrence” / an “expressly deterrent sentence”): paras [11] – [13]
4. In cases belonging to the latter category, adherence to the guidance in QWL paras [102] – [103] is essential: para [14]
5. Where sentencing guidelines decisions of the NICOA incorporate an element of specific (as distinct from general) deterrence, the sentencing court must avoid double counting.
6. “ … an offender’s personal circumstances will rarely qualify to be accorded much weight, particularly in a context where a deterrent sentence is required.” (para [18] quoting QWL para [98] )
THIS CASE
7. In the fact specific context of this case. First, per para [21]
“ … the judge’s approach to the issue of personal mitigation was in substance one of applying an absolute rule and, hence, not compatible with the principles expounded above, in a context of having erroneously declared this to be a case requiring deterrence, without more. The judge should have approached the issue of personal mitigation more flexibly and, having done so, explained the weight which he had determined to allocate to it. The impugned sentencing decision is not to this effect. Furthermore, the judge’s decision is not in accordance with the QWL guidance at paras [102]–[103].”
This passage identifies two material judicial errors. The first error entailed a judicial failure to recognise that the general rule in play viz the need for a deterrent sentence normally entails attributing little weight to personal mitigation factors is not absolute in nature.
8. Second, per para [22]: The COA was influenced by the newly admitted evidence.
Crown Court sentencing remarks – catfishing – sextortion - manslaughter - causing or inciting girls under 13 and between the age of 13 and 16 to engage in sexual activity – blackmail – making, distributing and possessing indecent images of children – causing a person to engage in sexual activity without consent - intimidation - sexual communication with a child - offending against 70 victims worldwide – harm inevitably and indisputably huge – assessed as presenting a significant risk of serious harm – victim did not prove on the balance of probabilities that he was the victim of catfishing as a child – no previous record – pleas of guilty – some limited evidence of remorse post 2019 – numerous aggravating factors outlined at para [77] - extensive and worsening offending after his first arrest in 2016 – life sentence imposed – 20 year minimum tariff imposed with concurrent sentences in respect of the remaining counts – 10 year SOPO – disqualified from working with children – disposal order in respect of 13 devices
[2024] NICC 30 O'Hara J
In this judgment the Court of Appeal provides guidance on the imposition of Sexual Offences Prevention Orders (SOPOs) at paragraphs [18] and [37].
Appeal against imposition of a SOPO – sexual activity with a child between the age of 13 and 16 - causing or inciting a child between the age of 13 and 16 to engage in sexual activity - SOPO made for five years and prohibited any contact with children under 16 of either gender or the victim who is now over 18 - whether SOPO wrong in principle and terms disproportionate - breadth of order as originally framed infringed the appellant’s family life disproportionately to risk he can be found to pose to children - substituted SOPO of same duration of five years with conditions considered necessary and proportionate – principles at paragraph [18] to be applied by judges considering imposition of SOPO in this jurisdiction - SOPO’s must be tailored to circumstances of each case and cannot be presented in formulaic way to avoid disproportionate orders being made - practitioners and judges must be cognisant of the high threshold required when considering the imposition of a SOPO - appeal allowed.
The Court of Appeal provides assistance in relation to online blackmail and sextortion (see in particular paragraphs [66] and [111]-[114])
Renewed application for leave to appeal an extended custodial sentence of six years imprisonment and four years extended licence – various sexual offences - indecent images - disclosure of private sexual photographs and films with intent to cause distress - online blackmail – sextortion - whether the starting point of nine years and the four year extension period were manifestly excessive – whether the SOPO was necessary and contrary to principle – right form of sentence attached to the wrong offences – overall sentence affirmed – leave to appeal granted – sentence restructured - appeal allowed to the extent of setting aside the invalid orders and substituting the sentences outlined in paragraph [116].
The Crown Court judgment can be located at [2023] NICC 15
At paragraph [58] of this judgment the Court of Appeal, while decrying an unduly mechanistic approach, provides guidance to assist sentencing judges when dealing with multiple offence, multiple victim cases.
Application to appeal a sentence of 12 years imprisonment – variety of sexual offences – two young female victims – totality – transparency - a sentence in the region of 11-12 years held to be appropriate - appeal dismissed
The Court of Appeal clarifies the law and the approach to be taken with regards to sentencing in cases involving the sexual assault of children, particularly with reference to the application of R v GM [2020] NICA 49. (See in particular paragraphs [44] – [47])
DPP reference in respect of a sentence of two years imprisonment – two counts of sexual assault of a child under 13 – whether sentence unduly lenient – court not satisfied that the sentence met the very high threshold of being unduly lenient – leave granted given the issues that arose with regards to the application of R v GM – reference dismissed
Crown Court sentencing remarks which provide assistance in sentencing for the offence of the abuse of a position of trust contrary to Article 23 of the Sexual Offences (Northern Ireland) Order 2008 (See in particular paragraphs [18] – [20])
Five specimen counts of abuse of a position of trust – support worker at a children’s home – looked after child with history of addiction and mental health issues – DCS three years and six months (18 months custody and 2 years statutory supervision)
The Court of Appeal sets out best sentencing practice in terrorism cases with reference to the new statutory sentencing regime at paragraphs [33] – [36].
Appeal against a sentence of four years imprisonment and 12 month licence period – collecting or making a record of information likely to be useful to a terrorist – whether sentence manifestly excessive – whether the sentence was a product of an error of law relating to the new sentencing regime – article 7 ECHR – new approach applied by sentencing judge – one year licence period applied by operation of law rather than any judicial decision or act – no error of law – court reemphasised where a deterrent sentence is required personal mitigation carries little weight – appeal dismissed
The Court of Appeal sets out guidance in relation to offences conducted over the internet which involve engaging in sexual activity in the presence of a child or causing or inciting children to engage in sexual activity. The fact that there is no direct physical contact does not alter the seriousness of such offending and the need for condign punishment.
DPP Reference to review a three year probation order – pleas of guilty in respect of a range of sexual offences against children online – whether sentence unduly lenient – delay – Reference allowed – probation order quashed and substituted with 18 months imprisonment.
Renewed application for leave to appeal a sentence of four years’ imprisonment – four counts of conspiracy to cheat the public revenue – sole issue of impact of imprisonment on applicant’s son – whether sentence should be suspended – Court of Appeal approved the application of the guidance in R v Petherick [2012] EWCA Crim 2214 in NI – circumstances not so exceptional to merit a suspension – public interest in deterrence – appeal dismissed
[2023] NICA 71 Keegan LCJ
Renewed application for leave to appeal sentence – money laundering operation – Proceeds of Crime Act 2022 – whether sentences manifestly excessive – applications to receive new material granted – principle of mercy applied to two mothers - Article 8 ECHR – the offender’s personal circumstances - judge erred in confining exceptional circumstances to the offending itself - disparity in sentencing – deterrent sentences – culpability – the aggravating factors contained highly prejudicial assertions not agreed or proven – prosecution portrayal of the roles and knowledge attributed to the appellants was inconsistent - roles/rankings which the judge attributed to certain appellants were neither agreed nor proven - leave granted – appeals allowed - sentences reduced.
Guidance in relation to the following sentencing principles can be found at paragraphs [86] – [110] - mercy in sentencing, Article 8 ECHR to include reference to R v Petherick [2013] 1 WLR 1102, exceptional circumstances, the offender’s personal circumstances, disparity in sentencing, deterrent sentences and culpability.
Guidance provided on sentencing for two equally serious offences on a concurrent basis applying the totality principle - GBH with intent – sexual assault by penetration of a 12 day old baby – sentence of 19 years imprisonment plus an extended period five years - whether manifestly excessive – starting point – dangerousness - culpability and harm high – whether premeditation – no mitigation save for guilty pleas – sentence not manifestly excessive – exceptional circumstances – appellant provided no explanation or offered remorse – appeal dismissed.
[2022] NICA 69 Keegan LCJ
guidance in relation to sentencing for rape with aggravating features - appeal against sentence - whether sentence of 20 years plus five years extended term manifestly excessive - rape whilst unconscious – did not disclose previous convictions - grievous bodily harm - attempting to choke - previous rape - no remorse - blamed victim for her injuries – starting point – transparency – methodology of sentence – sentence beyond usual range and may be unprecedented in this jurisdiction – high culpability and high harm with myriad of aggravating factors – appropriate custodial term is one 18 years – no error in 5 year extension period - appeal dismissed.
[2022] NICA 55 Keegan LCJ
Appeal against sentencing at re-trial – whether sentence manifestly excessive - Sexual Offences Prevention Order - indecent assault on children – sentences affirmed – SOPO discharged
[2021] NICA 1 McCloskey LJ
Sexual Assaults contrary to Art 6 Sexual Offences (NI) Order 2008 – whether ECOs a suitable disposal.
[2020] NICA 16 Morgan LCJ
appeal against sentence - supply of a Class A and Class B drugs (cocaine) contrary to section 4(3)(b) of the Misuse of Drugs Act 1971 - substantial criminal record of 61 previous convictions, three relate to possession of drugs (cannabis) - delay - approach adopted and weight accorded by the sentencing judge to the factor of the appellant’s rehabilitation were erroneous in law - appeal allowed
[2019] NICA 72 McCloskey LJ
Whether failure to activate two previous suspended sentences and to impose a third suspended sentence unduly lenient – sexual offences - 85 year old man - numerous sexual offences involving children – sentence quashed and the two previous suspended sentences activated and pass a sentence so as to achieve an effective total determinate custodial sentence of 3 years
[2019] NICA 42 Keegan J , Stephens LJ , Treacy LJ
Whether sentence unduly lenient - multiple offences of indecent assault, buggery and attempted buggery committed on three children - offender an elderly man of 91 years - monk at Portglenone Abbey – sentences unduly lenient – sentences amended.
Neutral Citation No: [2019] NICA 26 McBride J , Morgan LCJ , Stephens LJ
Reference by DPP NI under S. 36 Criminal Justice Act 1988 as amended by S. 41(5) Justice (NI) Act 2002 – whether sentence of 5 months’ custody unduly lenient - sexual assault of a child under 13 contrary to Article 14 of the Sexual Offences (NI) Order 2008 – whether failure to impose a SOPO unduly lenient – sentence quashed and SOPO imposed.
[2019] NICA 23 Stephens LJ