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England and Wales Court of Appeal (Criminal Division) Decisions


You are here: BAILII >> Databases >> England and Wales Court of Appeal (Criminal Division) Decisions >> Emmerson, R. v [2025] EWCA Crim 756 (01 May 2025)
URL: http://www.bailii.org/ew/cases/EWCA/Crim/2025/756.html
Cite as: [2025] EWCA Crim 756

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The provisions of the Sexual Offences (Amendment) Act 1992 apply in this case.
Neutral Citation Number: [2025] EWCA Crim 756
CASE NO 202500731/A4

IN THE COURT OF APPEAL CRIMINAL DIVISION
ON APPEAL FROM THE CROWN COURT AT MANCHESTER
MR RECORDER LOWE CP No: 06A20041224

Royal Courts of Justice
Strand
London
WC2A 2LL
1 May 2025

B e f o r e :

LORD JUSTICE EDIS
MRS JUSTICE STACEY DBE
THE RECORDER OF SOUTHWARK
HER HONOUR JUDGE KARU
(Sitting as a Judge of the CACD)

____________________

REX

- v -

ROBERT EMMERSON


REFERENCE BY THE ATTORNEY GENERAL UNDER S.36 OF THE CRIMINAL JUSTICE ACT 1988

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Computer Aided Transcript 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)

____________________

MISS G WHITE appeared on behalf of the Attorney General
MR J BOWKER appeared on behalf of the Offender

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HTML VERSION OF JUDGMENT
____________________

Crown Copyright ©

  1. LORD JUSTICE EDIS: This is an application by His Majesty's Solicitor General for leave to refer the sentences in this case under section 36 of the Criminal Justice Act 1988 with a view to them being increased by this court on the ground that they were unduly lenient. We give leave.
  2. The provisions of the Sexual Offences (Amendment) Act 1992 apply in this case. There were 11 victims of the course of sexual offending which we are about to describe. No matter may appear in any publication during the lifetimes of those victims which is likely to identify them as being the victims of these sexual offences. That remains the position unless and until the protection is amended by order of this court and there is no reason at all to suppose that it ever will be.
  3. The offender, Robert Emmerson is now 40 years old. On 23 October 2024 in the Crown Court at Manchester he was convicted after a trial of 12 offences. There were five offences of sexual assault, contrary to section 3(1) of the Sexual Offences Act 2003 and seven offences of exposure, contrary to section 66(1) of the same Act. After an adjournment, during which a pre-sentence report was prepared, a sentencing hearing took place on 30 January 2025 at which the trial judge, Mr Recorder Geoffrey Lowe, sentenced the offender to a total term of four-and-a-half years' imprisonment. Further orders were made, including a Sexual Harm Prevention Order, which are conventional and appropriate in a case of this kind and nothing now turns on any of those.
  4. The indictment contained, as we have said, 12 counts and it is necessary to explain how the term of four-and-a-half years was arrived at. The judge decided that count 4 on the indictment, an allegation of sexual assault, was the lead offence because it most clearly qualified for guideline purposes for the classification A1. Four years' imprisonment was imposed in respect of that offence and terms of four years concurrently were imposed in respect of the other counts of sexual assault which were counts 1, 3, 8 and 11.
  5. The allegations of exposure were dealt with by concurrent terms for those offences which were committed in the same location as the offences of sexual assault. Those terms were nine months' imprisonment concurrently imposed in relation to counts 2, 5, 7, 9 and 12. Consecutive terms of six months were imposed in relation to counts 6 and 10. The reason for that was that those two offences of exposure were committed at a different place from the offences of sexual assault and the other offences of exposure. In effect the judge treated the offending at the first location as a course of conduct and the two offences at the second location as a different course of conduct justifying the consecutive terms. At all events the result was, as we have said, a term of four-and-a-half years' imprisonment.
  6. In very short summary, the course of conduct at the first location occurred between 6 November 2023 and 15 April 2024. These offences were committed at an underpass near Cambridge Street in Manchester which was frequently used by young women, who were students at a nearby university, to walk between the university and their accommodation and other places. They were commonly walking on their own and the offender travelled from his address which was some considerable distance away in order to attend this location which he had identified as an ideal place in which to accost young women, to expose his genitals to them and then to assault some of them sexually.
  7. The second location was in Wythenshawe in Greater Manchester which is the area where he lives. Two offences of exposure were committed there. The significant feature of those two offences, which differentiates them to a degree from the other exposure offences at the underpass, was that in relation to count 6 the victim was 13 years old and in relation to count 10 the victim was 16 years old. The victims who were attacked in the underpass were all university students, the eldest was 24 and the youngest of those victims 18 years old.
  8. It is necessary to set out the facts of what occurred in a little detail. Counts 1 and 2 on the indictment were paired offences in the sense that they were both committed against the same victim, V1. She was the victim of an offence of sexual assault and an offence of exposure on the same occasion. She was walking through the underpass when she saw the offender who had his penis out of his trousers and exposed. He was holding it in his hand. She turned towards him and he ran at her. She panicked and ran away from him but he caught up with her and pushed her hard to the floor using both hands. She fell to the ground and ended up with her back against a wall. The offender's penis was still exposed and she thought that he was going to rape her. She tried to keep him away but he pinned her shoulder to the floor, preventing her from moving. With his penis still exposed he began to rub her vagina aggressively over her clothing. He was smiling and laughing while he was doing this. V1 screamed as loud as she could, hoping someone would help her. This appears to have caused the offender to desist. He got up and ran away. Subsequently his DNA was identified in a sample taken from V1's leggings. This was not a sample found in semen but it identified him conclusively as the offender.
  9. There are victim personal statements from all of these victims. We will not set out in this judgment in detail the content of all of them. We have read them with care. The overall picture which they paint is that each of these young women, or girls, was seriously traumatised by what this offender did to them. It will readily be imagined that someone who has been the victim of behaviour of the kind we have just described is likely to respond by increased fear, panic, caution in going out into public places and a lack of trust and confidence in the world around them. That serious consequence of offending of this kind may resolve in some cases but in many cases, perhaps all, it will leave a life-long legacy of increased fear of harm in places where they ought to feel safe.
  10. Count 3, an offence against V2, took place on 13 November 2023 when she was walking through the same underpass. She saw the offender approaching her and thought that he looked "shifty" and was staring at her uncomfortably. As she approached the entrance to the tunnel he launched himself at her. He picked her up with one hand under her vagina, lifting her in the air. She was too stunned to react at first but then began to scream for help and threw the things that she was carrying onto the floor. She swung her legs around trying to cause him as much difficulty as she could in grappling with her. She was face to face with him and she saw that he was grinning and smirking. Suddenly he dropped her and then stood over her with his hands above his head like a bear, as she said, trying to frighten her. She was able to take hold of her bag which contained her laptop and she began to swing it at him. She could then run away and shout for help.
  11. Count 4 occurred in the underpass on 7 December 2023. V3 saw the offender hiding behind a wall as she left the underpass. She saw that he had his hands near his penis and she assumed at first that he was urinating. She continued to walk by and then realised that he was following her. She turned and saw that he had got very close to her indeed. He then grabbed her around the waist with both hands. There was a scuffle in which she was tackled to the ground. She had been wearing headphones; they came away.
  12. Whilst they were on the ground the offender had his left hand around her waist and used his right hand to grope her vagina aggressively over her clothing. As he did this he turned to look at her and said: "Ooh yeah". The top half of his body was on top of her. She was screaming for help. He then ran off but as he did so he turned back towards her and smirked at her.
  13. Count 5 occurred earlier on the same date and at the same place. Victims V4 and V5 were walking through the underpass when they saw the offender with his zip undone on his trousers and his penis exposed. V5 said that she saw him masturbating.
  14. Count 6 is the first of the Wythenshawe offences. It occurred on 15 January 2024 when V6, who was 13 years old at the time, was walking with some friends on her way to school. She saw the offender behind a metal fence. She looked back and she saw that he had pulled down his trousers, was holding his penis and was masturbating.
  15. Count 7 is another offence committed at the underpass and occurred on 18 January 2024. V7 was walking in the same direction as the offender and when they were about a metre apart he turned round and started to walk towards her. As they came very close to each other he took his penis out of his trousers and began to shake it, laughing at V7 at the same time. She was able to make her way out of the underpass and away from him. She was distressed and sent a message to a friend for help.
  16. Counts 8 and 9 are another pair of offences committed on the same occasion against the same victim, V8. This offending took place at the underpass on 23 January 2024. Again as she was walking through the underpass she saw the offender walking past her and then walking in front of her. He stopped, turned around, looked at her and walked backwards towards her, smiling. She noticed that he had his penis exposed and he was masturbating. She turned to run away, screaming, but he grabbed her from behind by the waist. He dragged her to the floor, still with his arms around her waist, and began to rub his exposed penis onto her bottom. She was able to get up and run towards the exit and away from the underpass. She noticed as she fled that her leggings felt wet and she wondered if he had ejaculated on her. Subsequent scientific investigation did not suggest that that had happened.
  17. Count 10 is the second Wythenshawe offence against V9, a child of 16 years of age. She was walking to school, looking at her phone with her headphones in, when she saw the offender behind a gate with his penis exposed, masturbating and laughing.
  18. Count 11 was an offence at the underpass against V10 on 15 April 2024. She saw the offender walking in front of her. As she overtook him he grabbed her from behind. He put one hand under her bottom and was grabbing her vagina, holding her around the waist with his other arm. She screamed and tried to turn in his grip to loosen his hold of her. In the end she screamed in his ear and that caused him to let go of her.
  19. Count 12, the final offence, occurred on 15 April 2024 in the underpass and was committed against V11. As she entered the underpass she saw that he was looking at her in a way which caught her attention. She walked past him into the tunnel, she looked round and saw him still staring at her. She started to speed up, running slightly, but he also sped up and matched her speed. She turned round again and saw that he had removed his penis from his trousers and exposed it. He was touching it with his hands and smiling and laughing. She was able to leave the scene feeling distressed.
  20. It is a common feature of these offences that the young women and girls against whom they were committed were on their own or with one or two friends, often they were wearing headphones, an engrossed in their own business, walking through a public space. They were deliberately targeted. The selection of the underpass as the location of most of the offending was clearly calculated and involved a degree of planning.
  21. At the end of all this the police identified the offender using CCTV footage. He was arrested and interviewed. He denied all the offences, saying that it was not him on the CCTV and that he had not committed any of these offences or been present at the locations where they occurred. These denials required a substantial investigation to be conducted. There was analysis of phone data and of extensive CCTV footage both from the relevant locations and from buses and other forms of public transport which he had used to get from where he lives to the underpass. There were video identification procedures in which six of the victims positively identified him. The victims had described clothing and identical clothing was recovered when his home was searched. His DNA was, as we have said, identified on the leggings of V1.
  22. He maintained these denials through to trial. He did not give evidence at trial but nevertheless has continued since the trial to deny the offending when spoken to by the author of the pre-sentence report. This approach to overwhelming evidence is indicative of a reckless and unrealistic state of mind and indicates a man with no real understanding or insight into the reality of his situation. Although he is not of course to be punished for having a trial, and indeed was not punished for having a trial, nevertheless his attitude to his offending is of the greatest possible significance when assessing whether he is a dangerous offender and, if so, whether an extended determinate sentence is necessary. His approach to the allegations against him is significant in that context.
  23. The Solicitor General, through Miss Gemma White, for whose assistance we are extremely grateful, makes three submissions. First, it is submitted that the judge failed to identify clearly that the sexual assault offences engaged the categorisation A1. That submission is made specifically in relation to the offence on count 4, which we have described as the lead offence, but Miss White does say that it applies equally to all of these offences. In the end, the judge imposed concurrent terms of four years which is the starting point and did not make any uplift to reflect either the multiplicity of the offending or the various aggravating features which it involved.
  24. That submission is built upon in Miss White's second submission which is that the multiplicity of offending required a substantial uplift from the starting points taken by the judge to reflect the totality, so that the custodial term was proportionate to the overall offending.
  25. The third submission is that the judge erred and erred in a way which was unduly lenient by failing to pass an extended determinate sentence which was on all the available evidence necessary to protect the public from a high risk of serious harm posed by this offender.
  26. Mr Bowker, who represented the offender at trial, at sentence and who has presented written and oral submissions to us this morning, submits that the judge had heard the trial and was in an ideal position to assess the overall weight of the criminality and to take an informed and appropriate discretionary decision on whether an extended determinate sentence was required. Although the judge in his sentencing remarks did not expressly say that he found this offender to be dangerous, Mr Bowker accepts that because the judge referred to the exercise of his discretion, having regard to the substantial determinate sentence he was going to impose, he must have first found this offender to be a dangerous offender. Otherwise consideration of that discretion would not have arisen. That is a realistic approach, in our judgment, to the way in which the judge expressed himself and we are grateful to Mr Bowker for his submissions. In them he has said everything that could possibly be said on behalf of this offender.
  27. It is now necessary to say something about the offender. It is a striking and significant fact that he has relevant previous convictions. He has a previous conviction from February 2015 for two offences of exposure. He has a conviction for stalking involving serious alarm or distress from March 2015 and two further stalking convictions also from March 2015. These convictions from 2015 collectively relate to multiple occasions when he exposed his penis to school girls and students Wythenshawe. He did not receive an immediate custodial sentence on that occasion and the custodial sentence imposed on him by the Recorder in this case is his first custodial term.
  28. The judge had helpful documents from both counsel dealing with the appropriate approach to sentence. He had a pre-sentence report and he had the victim personal statements. The pre-sentence report says that the offender is, in short, dangerous. That conclusion is based on the offending itself, on the previous convictions and on the remarkable approach taken to his predicament by the offender to which we have already referred. The opportunities for addressing and remedying the propensity for sexual offending, which this offender clearly has, are limited by his persistent, determined and almost delusional denial. The judge, as we have indicated, did in fact find that the offender was a dangerous offender and no other conclusion was properly open to him on the material which he had.
  29. Discussion and conclusion

  30. We agree with the Solicitor General that the sentence imposed by the judge was unduly lenient. We consider that the appropriate classification of one or all of the offences of sexual assault was A1. They involved significant violence. They were carried out persistently at a location which had been deliberately chosen because it was suitable for that purpose. That is a significant degree of planning. As a Category A1 offence of sexual assault, a single offence would engage a starting point of four years' custody and the category range was three to seven years. It was in our judgment plainly inappropriate, having regard to the aggravating features which the judge did acknowledge in his sentencing remarks, to impose a sentence for all five offences of sexual assault which would have been justified for any one of them on its own. That conclusion is plainly reinforced by the previous convictions. Similarly, we consider that the judge erred in his approach to the multiple offences of exposure again having regard in particular to the previous convictions. This is obsessive behaviour. It is in some cases a marker of an offender who poses an escalating risk of sexual offending. That has proved to be the case in the case of this offender because having started out as a person committing only offences of stalking and exposure, he has progressed on a very substantial number of occasions to serious contact offending as reflected in the counts on the indictment which we have described above.
  31. So far as the counts of exposure are concerned, the maximum sentence for an individual offence standing on its own is two years' imprisonment. We can see no reason whatever why sentences of two years' imprisonment concurrently on each of the exposure counts following his conviction after a trial were inappropriate. For all those reasons we consider that the totality of the criminality represented by this offending required a substantially more severe sentence than that which was imposed by the judge. Accordingly, we quash the sentences which the judge imposed and impose in their place concurrent sentences, which will involve a custodial term of seven years in relation to each of the counts of sexual assault, with concurrent terms of two years in respect of each of the counts of exposure, making a custodial term of seven years in total. We consider that it is perfectly obvious that this offender is a dangerous offender. He poses a very significant risk of serious harm to members of the public, namely young women and girls. An extended determinate sentence is plainly required in order to address those considerations.
  32. The maximum sentence for sexual assault is 10 years' custody and the length of the extended determinate sentence which we can impose is therefore circumscribed by that maximum. For that reason we will impose concurrently in respect of each of the five counts of sexual assault an extended determinate sentence of 10 years, with a custodial term of seven years. The sentences of two years on each of the exposure counts will be concurrent with those sentences as we have explained. This is because the custodial term of seven years takes the offences of exposure into account and reflects the totality of the offending. All the other orders made by the judge are unaffected and will continue in force.

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