R v Sean Chibueze John [2025] EWCA Crim 511

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IN THE COURT OF APPEAL
CRIMINAL DIVISION
Case No 2024/03136/A2
Between
R EXCrown
London
WC2A 2LL
ON APPEAL FROM THE CROWN COURT AT HARROW
(HIS HONOUR JUDGE COLE) [T20217254]
[2025] EWCA Crim 511 Friday 4 April 2025
B e f o r e:
LORD JUSTICE WARBY
MR JUSTICE BRYAN
HIS HONOUR JUDGE ANDREW LEES
(Sitting as a Judge of the Court of Appeal Criminal Division)
____________________
- v -
Between
SEAN CHIBUEZE JOHN____________________Computer Aided Transcription of Epiq Europe Ltd,Lower Ground Floor, 46 Chancery Lane, London WC2A 1JETel No: 020 7404 1400; Email: rcj@epiqglobal.co.uk (Official Shorthand Writers to the Court)_____________________Mr C Langley KC appeared for Applicant____________________J U D G M E N T(Approved)Date 2025-04-04
[1]This is a case to which the Sexual Offences (Amendment) Act 1992 applies. The Act confers a right to lifetime anonymity on someone who complains of a sexual offence. We will therefore anonymise the complainant and refer to her as "C".[2]Sean John is now aged 20. On 25 May 2022, following a trial in the Crown Court at Harrow before His Honour Judge Cole and a jury, he was convicted of three counts of rape of a child under 13, contrary to section 5(1) of the Sexual Offences Act 2003 (counts 8, 9 and 14), eight counts of sexual assault of a child under 13, contrary to section 7(1) of the 2003 Act (counts 1, 2, 3, 4, 5, 6, 10 and 11), and one count of causing a child to watch a sexual act, contrary to section 13(1) of the 2003 Act (count 13). At the time of conviction, the applicant was 17 years of age.[3]It is unnecessary to recount the facts in any detail. It suffices to say that the offending took place between 1 June 2017 and 17 March 2020, when the applicant was aged between 11 and 15, and C was aged between 7 and 10. The offending began with groping and moved on to digital penetration. Later, the applicant would rub his penis between C's buttocks and bring himself to ejaculation. Later still, he penetrated her anally with his penis before ejaculating outside her. The section 13 offence (count 13) reflected several occasions on which the applicant showed C pornographic films on his phone. Most of the offending and all the rapes were committed when the applicant was staying with relatives and they were looking after C.[4]On 8 July 2022, the applicant was sentenced by the trial judge. On each count of rape the judge passed concurrent terms of six and a half years' detention under section 250 of the Sentencing Act 2020. On each of the counts of sexual assault, the judge passed concurrent terms of four years' detention. For the section 13 offence, he passed a concurrent term of two years' detention. The total sentence was accordingly one of six and a half years' detention.[5]On 29 August 2024, the applicant filed an application for leave to appeal against sentence in Form NG. The application was 755 days out of time. He sought an extension of time. The applications were refused by the single judge. The applicant has renewed them. He was 20 days out of time for doing that. He therefore needs a further extension of time.[6]The proposed grounds of appeal make no criticism of the judge's headline sentencing decisions. The only point raised arises from what he said about time which the applicant had spent on remand.[7]The facts in that regard are as follows. The applicant was arrested at Manchester Airport on 4 December 2021, on arrival from Nigeria. He was charged the following day. On 6 December 2021, he was remanded into the care of the local authority, pursuant to section 91(3) of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 ("LASPO"). The conditions were that he must not contact C and must live and sleep each night as directed by the local authority. He remained on remand, subject to those conditions for some five months up to the date of trial, after which he was placed by the local authority in the care of his maternal grandmother. We have been told by Mr Langley today that the overall period was one of 214 days, of which 159 were spent in local authority care pre-trial and 55 with the maternal grandmother.[8]In his sentencing remarks, having pronounced the sentence of six and a half years,

the judge said to the applicant:

"The time you have spent remanded in custody to the care of the local authority will count towards your sentence …"
The juge went on to tell the applicant that he would serve one half of his senence before being released on licence.[9]The proposed grounds of appeal assert that the judge was misled into passing a sentence which was not adjusted to take into account the time spent on remand. It is said that "had the judge been aware that the days on remand into the care of the Local Authority would not automatically be deducted from the sentence" he would have reduced the sentence that he imposed.[10]It is clear law that if a young offender is remanded to youth detention accommodation pursuant to section 91(4) of LASPO, time spent in detention will automatically count towards any custodial sentence imposed. But time spent on remand to local authority care, pursuant to section 91(3), does not count automatically towards sentence. The statutory scheme leaves room for a discretionary judicial decision to reduce the length of a sentence to reflect a remand under section 91(3). But it is only in that way that such a remand can operate to reduce the custodial portion of a sentence. The relevant statutory provisions have been examined on several occasions by this court. Most recently they were analysed and explained in R v A [2019] EWCA Crim 106; [2019] 2 Cr App R(S) 11. We refer in particular to paragraphs [31], [32], [38], [49] to [50] and [52].[11]It follows that if the judge assumed that the time that he mentioned would be deducted administratively from the period to be spent in custody, he was wrong in law.[12]The late filing of Form NG is explained by the fact that this point of law was not understood by the applicant's legal team at the time of sentence. It was only identified much later, when it became apparent that the Prison Service would not be crediting the applicant with the days he had spent on remand in the care of the local authority. By that time it was much too late to apply to the sentencing judge under the so-called "slip rule". An appeal to this court was the only available route of challenge. The applicant appears to us to have acted with reasonable expedition at that stage. The delay in filing the notice of renewal is short and explained by some understandable failures of communication. In all these circumstances we grant both the extensions required, and we grant leave to appeal against sentence. We therefore proceed to consider the appeal on its merits.[13]Mr Langley has today given us an account of how matters proceeded before the sentencing judge so far as the days on remand are concerned. We have taken that into consideration, along with the sentencing remarks from which we have quoted, and the other contextual information available to us. Our conclusion is that the judge made a mistaken assumption that there would be automatic administrative deduction of the days the appellant had spent on remand. The only alternative explanation is that the judge had made a positive judicial decision that time spent on remand would count. But that, as he will have known, would have required him not only to calculate or identify the period that was to count but also to declare that period in his sentencing remarks (see R v A at [21]-[22], [47]-[48] and Criminal Justice Act 2003, s 240A(8) and Sentencing Act 2020, s 325). On the face of the sentencing remarks, the judge did not do that, and we have not found ourselves persuaded that it is an exercise that he undertook.[14]The question therefore is whether any, and if so what, downward adjustment should now be made to reflect the time that the appellant (as he now is) spent on remand pursuant to section 91(3). The authorities provide some guidance on the approach to be taken. In R v D and H [2016] EWCA Crim 1807, this court noted that under s 240A(12) of the 2003 Act an offender who is remanded on bail subject to a "qualifying curfew condition" is entitled to credit of half a day for each day spent subject to a curfew. The court considered that sentencers ought to give credit by analogy when calculating the sentence to be imposed on an offender who is remanded under section 91(3) of LASPO with an equivalent curfew condition. In R v A, at [50], the court having noted this point went on:
"… There may be cases in which the interests of justice require that the length of the remand combined with the restrictive nature of the conditions ought to be reflected (beyond any credit for qualifying curfew) in the calculation of sentence – albeit that, as this case perhaps illustrates, such occasions are likely to be rare. In any event the amount, if any, of such credit will all depend on the facts of the particular case, and the judge's assessment of what the interests of justice require. It will not be a purely mathematical exercise."
[15]In support of his submissions to us today, Mr Langley drew attention to a passage in the earlier case of R v Anderson [2017] EWCA Crim 2604; [2018] 2 Cr App R(S) 21, at [38], in which the court made this observation:
"We acknowledge that if in his sentencing remarks the judge had expressly led the offender to believe that time would count, the position might (and we stress might) be different. …"
Mr Langley did not, however, develop that line of argument.[16]In writing, and in his oral submissions, Mr Langley advanced two main points. First, he submitted that the judge's remarks “make clear that he intended that the time that the appellant spent on remand in local authority care should be taken into account when considering how long he would spend in detention”. We have not found ourselves persuaded by that submission. As we have indicated, it is by no means clear to us that the judge made any such assessment or formed any such intention. To the contrary. In our judgment, looking at the matter objectively in context, the judge was doing no more than explaining what he mistakenly believed to be the legal effect of the sentence that he had just passed. It seems to us that the real question is whether this court is satisfied that a reduction is required in the interests of justice.[17]On that issue, Mr Langley's second main point is pertinent. He argues that the appellant's liberty was restricted in such a way and to such an extent that a reduction is necessary in this case. The appellant had to live where instructed by the local authority; he had to stay there overnight; and he had to abide by the specific rules of the place where he was resident. His mother lived in Nigeria and he could not visit her. Until the start of the trial, he was unable to stay with his grandparents or his maternal aunt who lived in the United Kingdom.[18]Mr Langley has not, however, been able to provide us with any detailed information about the circumstances in which the appellant was resident in local authority accommodation, or about the rules that applied. He invites us, instead, to draw inferences about the restrictions that were imposed on the appellant and, having done so, to reduce the sentence by the full amount of the time spent on remand. Alternatively, he invites us to make a discretionary reduction of some lesser amount to reflect the imposition of restrictions on liberty.[19]We are grateful to Mr Langley for his submissions, both in writing and orally today. But we are not satisfied that this sentence should be reduced for the reasons advanced. The appellant was not detained in custody at any time. We are not persuaded that the conditions to which he was subjected under section 91(3) come close to being the equivalent of detention. On the evidence before us, he was not made subject to a qualifying curfew condition; there was no curfew in place at all. To require an individual to stay the night in a particular place is a different matter altogether.[20]We do agree, and accept, that the remand conditions must have imposed some restrictions on the appellant's liberty beyond what they stated on their face. We are not, however, persuaded that in formal terms these went far beyond the restrictions commonly imposed on those who are granted conditional bail. We have also considered the practical impact. In doing so, we have borne in mind a passage in the sentencing remarks in which

the judge said:

"While remanded into the care of a local authority … you have been entrusted with a level of freedom …"
We have also had careful regard to the pre-sentence report prepared by Greater Manchester Youth Justice Services, dated 1 July 2022, which gives some insight into that observation.[21]The pre-sentence report shows that on his arrival in the United Kingdom in December 2021, the appellant was taken into local authority care "due to him being an unaccompanied young person on arrival from Nigeria". During his remand, his grandparents and extended family members remained in close contact with him and had supervised contact during the half term periods. He is a talented footballer. Whilst on remand he was referred by Social Services to a support organisation which helped him find a local under-18 football team, where he integrated well and made mutual friendships. The appellant is also musically talented and, whilst on remand, he was helped to enrol on a music studies programme which leads towards a formal qualification. The pre-sentence report stated that the appellant remained supported by his family and more comprehensive support networks which had resulted in positive relationships.[22]The judge’s sentencing remarks show that, in arriving at his sentence, he had careful regard to the contents of the pre-sentence report, which also contained considerable mitigation concerning the appellant. The judge took account of the appellant's age and his level of maturity, and the overall picture led him to pass a sentence which was, as he put it, "less than half the appropriate adult sentence".[23]In the light of all the information before us, we do not consider that the interests of justice require any further downward adjustment to reflect the circumstances in which this appellant was remanded under section 91(3). We do not consider the sentence passed to be either manifestly excessive or wrong in principle. Accordingly, for those reasons, the appeal is dismissed. _______________________________ 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 ______________________________