England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE CROWN COURT AT BOLTON
HHJ R GIOSERANO
T20177089; T20177128

		Royal Courts of Justice Strand, London, WC2A 2LL
		11/09/2018

Lord Justice Leggatt:

1. On 22 January 2018, at Bolton Crown Court, the first appellant, whom we shall refer to as X, pleaded guilty to 18 offences of indecent assault. The victims of those offences were his three stepdaughters. The offences were committed over a period of 17 years between 1979 and 1996 in the family home. The offences charged were examples only of a long and dreadful history of sexual abuse.
2. At the same hearing, X's brother, the second appellant, whom we shall refer to as Y, pleaded guilty to 15 offences of indecent assault and three offences of rape. Those offences were committed over the same period. The victims were the same three individuals as in the case of X but also included a fourth person, X's own natural daughter, who was therefore Y's own niece.
3. All four victims are entitled to lifelong anonymity and nothing must be published in any report of this case which would be likely to lead members of the public to identify them. It is for that reason, and that reason only, that we do not refer to the appellants by name in this judgment. They have no right to anonymity themselves but naming them would be likely to lead to their victims being identified.
4. X and Y were sentenced on 23 March 2018. In the case of X, the total sentence imposed was 20 years, comprising 18 years' imprisonment and 2 years extended licence. A table giving a breakdown of the offences and the sentences imposed for each offence is set out below:

Count	Offence	Sentence	Consecutive / Concurrent	Maximum
21	Indecent assault, s.14(1) Sexual Offences Act (SOA) 1956 June 1986 – June 1987 Complainant U16	3 years' plus 1 year extended licence		10 years
22	Indecent assault, s.14(1) SOA 1956 July 1979 – July 1985 Complainant U13	3 years' plus 1 year extended licence	Concurrent	5 years
23, 24	Indecent assault, s.14(1) SOA 1956 Sept 1985 – July 1988 Complainant U16	4 years on each concurrent	Concurrent	10 years
25, 26	Indecent assault, s.14(1) SOA 1956 Feb 1979 – Sept 1985 Complainant U13	3 years' plus 1 year extended licence On each concurrent	Concurrent	5 years
27, 28	Indecent assault, s.14(1) SOA 1956 Feb 1987 – Feb 1990 Complainant U16	4 years on each concurrent	Concurrent	10 years
30, 40	Rape, s.1(1) SOA 1956	10 years on each consecutive	Consecutive	Life
31	Rape, s.1(1) SOA 1956	12 years	Concurrent	Life
33, 34	Indecent assault, s.14(1) SOA 1956 June 1987 – June 1993 Complainant U16	4 years on each concurrent	Consecutive	10 years
35, 36	Indecent assault, s.14(1) SOA 1956. June 1993 – June 1996 Complainant U16	4 years on each concurrent	Concurrent	10 years
37, 38	Indecent assault, s.14(1) SOA 1956. Sept 1991 – Sept 1992 Complainant aged 10	3 years' plus 1 year extended licence On each concurrent	Concurrent	10 years
39	Indecent assault, s.14(1) SOA 1956. Sept 1991 – Sept 1992 Complainant aged 11	3 years	Concurrent	10 years

Total Sentence:

28 years, comprising 27 years' imprisonment and 1 year extended licence pursuant to s.236A CJA 2003

5. In the case of Y, the total sentence was 29 years, comprising 28 years' imprisonment and 1 year extended licence. Again, a table giving a breakdown of the offences and the sentences imposed for each offence is set out below:

Count	Offence	Sentence	Consecutive / Concurrent	Maximum
1, 2	Indecent assault, s.14(1) SOA 1956 July 1979 – July 1985 Complainant U13	2 years on each concurrent		5 years
3	Indecent assault, s.14(1) SOA 1956 Sept 1985 – July 1987 Complainant U16	2 years	Concurrent	10 years
4	Indecent assault, s.14(1) SOA 1956 Sept 1985 – July 1988 Complainant U16	2 years	Concurrent	10 years
5, 6	Indecent assault, s.14(1) SOA 1956 Feb 1979 – Sept 1985 Complainant U13	3 years' plus 1 year extended licence on each concurrent	Consecutive	5 years
7, 8	Indecent assault, s.14(1) SOA 1956 Feb 1987 – Feb 1990 Complainant U16	5 years on each concurrent	Consecutive	10 years
11, 12	Indecent assault, s.14(1) SOA 1956 Feb 1979 – Sept 1985 Complainant U13	2 years on each concurrent	Concurrent	5 years
13, 14	Indecent assault, s.14(1) SOA 1956 Feb 1987 – Feb 1990 Complainant U16	2 years on each concurrent	Concurrent	10 years
15, 16	Indecent assault, s.14(1) SOA 1956 June 1987 – June 1993 Complainant U13	3 years' plus 1 year extended licence on each concurrent	Consecutive	10 years
17	Indecent assault, s.14(1) SOA 1956 June 1993 – June 1996 Complainant aged 11 years	5 years	Consecutive	10 years
18	Indecent assault, s.14(1) SOA 1956 June 1993 – June 1996 Complainant U16	5 years	Concurrent	10 years
19, 20	Indecent assault, s.14(1) SOA 1956 June 1987 – June 1996 Complainant U16	4 years on each concurrent	Concurrent	10 years

Total sentence

18 years, comprising 16 years' imprisonment and total of 2 years extended licence pursuant to s.236A CJA 2003

6. Both X and Y have appealed against their sentences with leave of the single judge.
7. The judge in sentencing them described this case as one of the worst he had heard in the many years he has spent sitting in the Crown Court and in Family Courts dealing with cases of sexual abuse. The following summary inevitably omits much detail that would be necessary fully to convey the horrific nature of the facts.
8. The abuse began soon after X moved into the family home in 1979. At that time, his oldest stepdaughter, whom we will refer to as A, was aged 7. The first incident she recalled occurred in the bedroom that X shared with her mother. It involved him touching and rubbing her vagina. Thereafter, he would regularly enter the bedroom she shared with her sisters, put his hand under the bedclothes and rub her vagina. Sometimes he would wet his fingers before touching her. This would also occur when she sat on his knee in the living room. The assaults took place as often as four times a week. To begin with A did not understand that X's behaviour was wrong and did not try to stop him, but in later years she would push his hand away and try to prevent him from assaulting her. The assaults continued until she was about 14 years old.
9. A's sister B was subjected to similar abuse from soon after X moved into the family home when B was aged only 5 years. In B's case the abuse also included X exposing his penis and touching or rubbing her vagina with his penis. He would also take her in his car to places where he would park and touch her in the same way. He would also make her touch his penis and masturbate him until ejaculation. This behaviour continued until B was aged 15.
10. C, the third stepdaughter, was also regularly abused by X between the ages of 7 and 16. He would enter her bedroom regularly at night and wake her up by touching her vagina. He would then digitally penetrate and lick her vagina. This happened frequently and sometimes two or three times a week.
11. Y was a regular visitor to the house and his abuse of A and B began soon after his brother moved in. In the case of A, the general pattern was that Y would get her to sit on his knee and would then touch and feel her leg, moving his hand up to her vagina, which he would penetrate with his finger. At the same time he would kiss her on the lips. There came a time when A was between 10 and 12 when Y moved into the family home. He continued to abuse her until she was around 16.
12. Y assaulted B on numerous occasions between the ages of 5 and 15 years old. The assaults took the form of kissing her, penetrating her vagina with his finger and penis and attempting to have anal sex with her. This would occur in one of the bedrooms at the home, in the dining room and in Y's van. There were also occasions when she was made to masturbate him until he ejaculated. Once this took place in the living room in front of X and B mother.
13. B also remembered a specific occasion when she was aged 14 or 15 when Y raped her vaginally. This was the subject of one of his convictions for rape.
14. Later, when B was 18 years old, Y tricked her into going with him to a house where he locked her in the bedroom and forcibly raped her. As a result of that rape B was made pregnant and gave birth to a son.
15. When he was living in the same home as the family, Y also regularly assaulted C by entering her bedroom at night and penetrating her digitally. The first time this happened it caused her to bleed.
16. Finally, as already mentioned, Y abused X's natural daughter, D. When D was aged 10 the abuse took the form of kissing and hugging her and touching her vagina when other family members were not present. When D was aged 11 there was one occasion when the abuse took a different form of licking her vagina. Later, when she was aged 13 or 14, there was an occasion when Y made her have full sexual intercourse. This assault was the subject of his third conviction for rape.
17. The statements made by each of these victims testify to the devastating impact which this abuse has had in blighting their lives.
18. X was 65 years old when he was sentenced. He has a history of low-level criminal offending which includes a previous conviction for indecent assault. The pre-sentence report in his case indicated that he failed to take full responsibility for his behaviour, giving a minimised version of events and seeking to pass blame to his brother.
19. Y was aged 60 at the time of sentence. He has numerous previous criminal convictions and they include, importantly, convictions for 26 previous sexual offences. These offences include the rape of a boy under 14 and a sexual assault which involved the attempted rape of his own natural daughter. In relation to his previous offending, Y has taken a sexual offender treatment course four times, but that treatment has plainly had no significant effect on his behaviour. According to a psychological report, he was himself abused as a child. He has expressed regret for his actions and does not deny them, but has claimed not to remember most of the relevant events.
20. On behalf of Y, Mr Swift realistically accepted, as he was bound to do, that this is a very grave case. He raised a point about an unfortunate arithmetical confusion which took place when the sentence was announced. Originally the judge announced that the custodial sentence was to be 27 years, but this was then corrected to 28 years after the arithmetic had been properly performed. There is no doubt, however, that the judge intended to impose a sentence which involved a 28 year custodial term and in our view it cannot be said that any injustice was done by reason of the fact that the calculation was at first incorrectly done.
21. Both defendants pleaded guilty shortly before their trial was due to start. The judge said that in these circumstances he had made a 15 per cent discount in the length of their sentences. No criticism can be made or has been made of that approach. The judge should have specified his starting points but by implication in the case of X the starting point must have been a term of 22 years' imprisonment or thereabouts, which was then reduced to 18 years on account of his guilty pleas. In the case of Y, the starting point must have been around 33 years.
22. The principal point made by Mr Swift on behalf of Y was that, grave as this case is, the sentence imposed was at the extreme end of the spectrum. He referred in his written grounds of appeal to the decision of this court in the case of R v DJ [2015] EWCA Crim 563, in which a total custodial sentence of 33 years for a catalogue of serious sexual offences committed against young girls over a considerable period was reduced to 30 years. The court considered in the judgment cases at what was described as the extreme end of the spectrum of offending.
23. It must, however, be borne in mind that that case and the cases which were discussed in it were all decided when the previous sentencing guidelines were in force. Under the current sentencing guidelines, sentences for sexual offences have in general been increased. That is illustrated by the fact that under the earlier guidelines the starting point in a case of repeated rape of the same victim was one of 15 years whereas in the present guidelines it is recognised that cases may be of such severity - for example involving a campaign of rape - that sentences of 20 years and above may be appropriate.
24. The argument made by Mr Swift was that, whilst recognising that this case must necessarily attract a sentence high in the spectrum, the starting point of 33 years was simply too high and a starting point somewhere around 30 years or just below that would have been appropriate.
25. We recognise and accept that the starting point implicitly taken by the judge in this case was at the extreme end of the spectrum and that cases will be few and far between in which a starting point of that severity is appropriate. But, as the court emphasised in the case of DJ, there will in any given case be a number of factors to be taken into account. A case may reach of the level of the utmost seriousness by a variety of routes. What is required in each case is a careful assessment of the facts.
26. We are satisfied that on such an assessment of the facts, the sentences imposed on Y were justified. His offending involved the digital penetration in each case of his three step-nieces as well as other forms of sexual assault. It included the two offences of rape against B, the second of which resulted in her having a child. It included the rape of his own niece. The abuse continued week in, week out, week after week, year after year for an inordinate period of some 17 years. It must also be considered against the background of his previous appalling record of sexual offending to which we have referred. Y is, we are satisfied, a person of whom it can truly be said that the sexual abuse of vulnerable children has been a way of life. We consider that, high as the sentence is in this case, it cannot properly be said to be manifestly excessive.
27. Accordingly, his appeal against sentence is dismissed.
28. The same applies to X. Although he unlike his brother has not been convicted of rape, the indecent assaults which he committed included offences of digital penetration. There were three separate victims in relation to each of whom he occupied a position of trust as their stepfather living in the same home. The offences started when one of his stepdaughters was aged 5 and when each of the others was aged about 7. Above all, the offending was persistent and remorseless, occurring, as in the case of his brother Y, week after week, year after year, for a period of some 17 years. It has caused severe, predictable and probably permanent psychological damage to the three individuals concerned.
29. On his behalf, Ms Webster sought to argue that the sentence imposed was outside the sentencing guidelines. We see no merit whatever in that submission. The sentences imposed for the individual offences were in each case offences of 3 years or, in the case of the most serious offences, 5 years. Those sentences are well within the applicable guidelines for offences of the relevant type. We are also satisfied that the judge took appropriate account of the principle of totality. We see nothing wrong with the sentences arrived at in this case, which likewise in our view cannot be regarded as manifestly excessive.
30. It follows that the appeal of X will also be dismissed.