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John M Burton QC persuades the Court of Appeal to refuse an Attorney General’s reference

In December 2016 John Burton, Q.C. was instructed by solicitors in private practice to represent the defendant in the case of R v E, where a father was accused of committing serious sexual offences, including rape, against three of his own children.

The prosecution indicated at the first PTPH that they were pursuing enquiries relating to further offences concerning his children and other men. The matter came before the court again in January 2017. The prosecution indicated that they were still pursuing enquiries. John Burton requested that the court adjourn the hearing until the court was in a position to deal with all the offences. The court refused and E was sentenced to life imprisonment with a minimum term of ten years based on a determinate sentence after trial of thirty years, with a one third discount for an early guilty plea and then discounted again because the court was setting a minimum term.

In July 2017, E was charged with a further offences including offences of conspiracy with five others to rape his own children. E pleaded guilty and was sentenced in December 2017. At that hearing John Burton persuaded the court not to impose any additional sentence for these further offences and to pass a concurrent sentence.

The Attorney General referred the case to the Court of Appeal claiming that the further sentence was ‘unduly lenient.’ It was argued that the further serious offending should have attracted a lengthier minimum term. It was also argued that as E had not indicated his plea in the Magistrates’ Court in relation to the second set of matters, he was only entitled to a 25% discount and not the one third discount that he was given.

In the Court of Appeal John Burton argued that the sentence was not ‘unduly lenient’ and that if E had been sentenced for all the offences at the same time as he had originally requested, the sentence would not have been higher than the minimum term given. It was also pointed out that the matter was complicated and the defence lawyers needed sight of the evidence before advising on pleas and the case fell within the exception within the Definitive Guideline on Reduction for Guilty plea. The Court of Appeal agreed and in a judgment handed down just before Easter, they stated, “The life sentence manages risk, and an indication of what the notional sentence would be after trial, namely 30 years adequately reflects punishment and deterrence. We detect no gross error on the part of the judge. We do not interfere with the sentence.”In relation to the credit for plea issue, the Court of Appeal stated, “Whilst the Definitive Guideline Reduction in Sentence for a Guilty Plea applied in both cases, we consider the second indictment to have been complex and that the judge would have been justified in finding that there were, “particular circumstances which…made it unreasonable to expect the [respective] defendant to indicate a guilty plea sooner than was done.” (See exception F1 of the Definitive Guideline on Reduction for Guilty Plea.)”