R v Stephen Brown [2025] EWCA Crim 1086

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IN THE COURT OF APPEAL

ON APPEAL FROM THE CROWN COURT AT PRESTON

(HIS HONOUR JUDGE JEFFERIES KC) [04ZL2842322]

Case No 2025/01945/A4

[2025] EWCA Crim 1086

Venue Royal Courts of Justice

The Strand

London

WC2A 2LL

Date Thursday 10 July 2025

B e f o r e:

THE VICE-PRESIDENT OF THE COUT OF APPEAL, CRIMINAL DIVISION

(Lord Justice Holroyde)

MR JUSTICE CAVANAGH

HIS HONOUR JUDGE HIRST

(Sitting as a Judge of the Court of Appeal Criminal Division)

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ATTORNEY GENERAL'S REFERENCE

UNDER SECTION 36 OF

THE CRIMINAL JUSTICE ACT 1988

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Between

R E XCrown

- v -

Between

STEPHEN BROWN

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Computer Aided Transcription of Epiq Europe Ltd,

Lower Ground Floor, 46 Chancery Lane, London WC2A 1JE

Tel No: 020 7404 1400; Email: rcj@epiqglobal.co.uk (Official Shorthand Writers to the Court)

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Miss D Heer KC appeared for Attorney General

Mr N P J Clarke appeared for Offender

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J U D G M E N T

(Approved)

[1]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.

[2]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.

[3]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.

The relevant chronology

[4]We summarise the chronology of relevant events and criminal proceedings.

[5]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.

[6]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.

[7]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.

[8]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.

[9]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.

[10]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.

[11]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.

[12]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.

[13]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.

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

[15]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.

The sentencing

[16]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.

[17]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.

[18]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.

[19]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.

[20]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.

[21]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 difficulty arises because although there was a three year minimum term in that case, you have in fact served a period of 22 years under that sentence, only very recently being released on licence. The effect of the 22 years in detention under the life sentence would equate to a determinate sentence of some 44 years. By the figures I have referenced already, namely 20 and two, it does not take much difficulty to work out that even serving two thirds of such a sentence would equate to a 14 year period of detention. There is no dispute that in this case you have served actually in prison longer than 14 years in custody. The core issue that I have had to grapple with is whether on the one hand I pay no or little attention to the fact of that previous sentence post the three year period, where your detention was only authorised because you remained a risk to the public, having served the punitive element of three years, or whether I have full regard to that period, following the three years in order to properly sentence you today."

[22]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".

The submissions to this court

[23]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.

[24]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]:

"… the exercise to be carried out is not simply to consider what overall sentence the court would have imposed had it been seized of all the matters on the first occasion and deduct from that figure the sentence already imposed. …"

[25]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.

[26]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.

[27]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.

[28]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.

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

Analysis

[30]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.

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

"Sentencing for offences committed prior to other offences for which an offender has been sentenced The court should first reach the appropriate sentence for the instant offences, taking into account totality in respect of the instant offences alone. The court then has a discretion whether to make further allowance to take into account the earlier sentence (whether or not that sentence has been served in full). The court should consider all the circumstances in deciding what, if any, impact the earlier sentence should have on the new sentence. It is not simply a matter of considering the overall sentence as though the previous court had been able to sentence all the offences and then deducting the earlier sentence from that figure. A non-exhaustive list of circumstances could include: a. how recently the earlier sentence had been imposed, taking account of the reason for the gap and the offender’s conduct in the interim b. the similarity of the offences sentenced earlier to the instant offences c. whether the offences sentenced earlier and instant offences overlapped in time d. whether on a previous occasion the offender could have 'cleaned the slate' by bringing the instant offences to the police's attention e. whether taking the earlier sentences into account would give the offender an undeserved bonus – this will particularly be the case where a technical rule of sentencing has been avoided or where, for example, the court has been denied the opportunity to consider totality in terms of dangerousness f. whether the instant offence qualifies for a mandatory minimum sentence g. the offender's age and health, and whether their health had significantly deteriorated h. whether, if the earlier and instant sentences had been passed together as consecutive sentences, the overall sentence would have required downward adjustment to achieve a just and proportionate sentence."

[32]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.

[33]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.

[34]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]:

"… Had the learned Recorder given these matters appropriate consideration and exercised her discretion not to take into account the previous sentence accordingly, then in order for the Court of Appeal to interfere with that discretion it would have had to have been shown that she had exercised her discretion irrationally, for example by taking into account some matter she should not have one, or failing to take into account a matter she should have done, or otherwise in adopting an irrational approach. This could be a difficult hurdle to cross."

[35]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.

[36]Turning to the non-exhaustive circumstances mentioned in the Totality guideline, we make the following observations:(a) The earlier sentence was imposed nearly a quarter of a century ago. There has been no suggestion that the offender has committed any further offence, still less any sexual offence, during the many years he was in prison, or in the three years he has been living in supported accommodation.

(b) The present offences are of a broadly similar kind to those for which the previous sentence was imposed.

(d) Miss Heer submits that the offender could realistically have "cleaned the slate" when he was convicted in 2001. She suggests that one would expect the probation officer to have asked about his behaviour towards other children. That, however, is a matter of speculation. We have been given no information about what material was before the court in 2001. What we do know is that in 2003, the CPS did not think it was in the public interest to prosecute the offender after VM's complaints had been reported to the police. It is, moreover, important to bear in mind the offender's learning disability and the evidence that he struggles to understand why certain behaviour is wrong. In the absence of any clear information about what he was asked at the time and by whom, we cannot regard this as a straightforward case of an offender who could have cleared the slate, but deliberately chose not to do so.

(e) Taking the earlier sentence into account would not give the offender any undeserved bonus. On the contrary, the CPS decision in 2003 meant that the offender was not prosecuted at a time when any sentence for offending against VM would have run concurrently with the custodial part of the life sentence.

(f) No mandatory minimum sentence is involved, though it is right to note that custodial sentences for some of the offences would have to take the form of the special custodial sentence under section 278 of the Sentencing Code for offenders of particular concern.

(g) There is no evidence of a significant deterioration in the offender's health.

(h) If all the sentences had been passed together and ordered to run consecutively, a substantial downward adjustment would have been necessary to achieve a just and proportionate total sentence.

[37]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.

[38]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.

[39]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.

[40]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.

[41]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.

[42]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.

[43]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. _________________________________ Epiq Europe Ltd hereby certify that the above is an accurate and complete record of the proceedings or part thereof. Lower Ground Floor, 46 Chancery Lane, London WC2A 1JE Tel No: 020 7404 1400 Email: rcj@epiqglobal.co.uk 44. ______________________________