England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice The Strand London WC2A 2LL
		19th January 2018

LORD JUSTICE SIMON:

1. The provisions of the Sexual Offences (Amendment) Act 1992 apply to this case. Under these provisions, where a sexual offence has been committed against a person, no matter relating to that person shall during that person's lifetime be included in any publication if it is likely to lead members of the public to identify that person as the victim of that crime. This prohibition applies unless waived or lifted in accordance with section 3 of the Act.
2. On 7^th April 2017, in the Crown Court in Caernarfon before Her Honour Judge Lloyd-Clarke and a jury, the appellant was convicted on fourteen counts charging sexual offences against two victims, "X" and "J". On 27^th April he was sentenced by the trial judge as follows: on eight counts of sexual assault, contrary to section 3(1) of the Sexual Offences Act 2003, to concurrent terms of seven years' imprisonment (on counts 5, 6, 7 and 13, the victim was J, and on counts 1, 3, 8 and 14, the victim was X); on count 2 (rape of X, contrary to section 1(1) of the 2003 Act), to 21 years' imprisonment; on counts 4 and 9 (rape of X), 15 years' imprisonment; on counts 10 and 11 (causing a person (J) to engage in sexual activity without consent, contrary to section 4(1) of the 2003 Act), 15 years' imprisonment; and on count 12 (causing J to engage in sexual activity without consent), 21 years' imprisonment. All these sentences were ordered to run concurrently, so the overall term was 21 years' imprisonment. In addition, a Sexual Harm Prevention Order was made. That is not the subject of this appeal against sentence which is brought with the leave of the single judge.
3. The offences involved the appellant's prolonged sexual abuse of two boys, X (aged 14) and J (aged 15 to 16 during the currency of the offending). Their mother had shown the appellant kindness following his wife's death in 2015. She had been a friend of his wife.
4. It is convenient to set out the facts as they emerged. The appellant's criminal behaviour began shortly after the appellant asked the boys' mother if he could take them on holiday to Sharm-El-Sheik. While there, the two boys and the appellant shared a bedroom with two beds pushed together to make a single large bed, which was then shared by the three of them.
5. One night the appellant pulled down the boxer shorts of J, the elder brother. He began to masturbate J, who asked him to stop. The appellant initially ignored the request, but stopped when J asked him more forcefully. Upset by this, J left the hotel room. The appellant followed him to the reception area and apologised. He then committed a further sexual assault on J a few days later. These offences were represented by count 5, which was a specimen count.
6. Two weeks after returning from the holiday, J accompanied the appellant who was helping a friend to move house. During the afternoon, the appellant masturbated J (count 6). The appellant stopped when J told him to. The appellant committed further similar offences against J approximately every two weeks between March and July 2015 (count 7, another specimen count). If J asked the appellant to stop, he would claim to be helping J.
7. In January 2015, the boys moved from Derbyshire to Holyhead. The appellant visited the family regularly and would stay overnight. When at the house, he would text J with a message, such as whether he would like a drink. Although J did not respond, the appellant would use the message as a pretext to visit J in his room. He would then climb into J's bed and touch his genitals. This later escalated to the appellant performing oral sex on J, even though J made it clear that he did not want him to. When J asked him to stop, the appellant would; but he would also claim that he thought J welcomed his actions. Counts 10 and 11 were specimen counts to reflect this pattern of section 4 offending by the appellant.
8. Count 12 reflected a specific incident of section 4 offending which occurred in June or July 2016. On that occasion J received a text message from the appellant asking if he wanted a chat. J responded "no", because he was tired. But the appellant entered his bedroom anyway. He climbed into J's bed and masturbated him. He then turned J over and attempted to insert the boy's penis into his anus. The appellant managed to achieve partial penetration before J pushed him away, shouting "What the hell are you doing?" The appellant also masturbated J whilst on holiday in Turkey in 2016, which gave rise to specimen count 13.
9. In August 2016, J disclosed these offences to his older sister who was still living in Derbyshire. The following day she travelled to the family home in North Wales and told J's stepfather who then confronted the appellant. In response, the appellant threw himself to the floor and said he could "not live with this". The appellant then denied the allegation and volunteered to leave the family home. He did so the following day. He then attempted suicide. The offences were reported to the police a week later.
10. We turn to the offences committed against X. As a result of the disclosures by J, his younger brother X was also spoken to by the police. He initially denied that the appellant had committed any offence against him. However, in January 2017 he disclosed to his mother that the appellant had also sexually assaulted him. He told police that the appellant would kiss him on the lips, put his penis into his bottom and masturbate him. The first occasion was in the family's former home in Derbyshire, not long after the appellant's wife had died. When he spent the night with the family, the appellant would get into X's bed and masturbate him from behind. He would also penetrate his anus with his penis. Counts 1 and 2 were specimen counts reflecting the course of offending in Derbyshire.
11. X also recalled other specific occasions when the appellant had sexually assaulted him. He had masturbated him and then anally raped him when the two stayed together in a hotel in Glasgow. Similar sexual offences occurred during the holiday in Egypt. Counts 3 and 4 represented specimen counts for the appellant's offending against X in Egypt. The appellant also committed offences against X when he helped him with his work during the summer holidays in 2015. The appellant committed similar offences against X twice a week up until shortly before the appellant left the home in North Wales in August 2016. Counts 8 and 9 were specimen offences to reflect the continued course of conduct. The most serious offending stopped after the appellant left the family home, but he continued to see X and touch his bottom.
12. The appellant was initially arrested in November 2016 when he agreed much of the background, but denied any sexual offending against J. He was then re-interviewed in February 2017 regarding the allegations that had been made by X. He admitted that he had shared a bed with X and that he loved him as a friend, but denied any sexual contact between them.
13. There were Victim Personal Statements from both J and X. They spoke of the effect of the offending on their mental wellbeing, their ability to concentrate, which had impacted on their school studies, and their ability to trust and to make friends.
14. The appellant was aged 54 at the date of sentence. He had two previous convictions. Materially, for present purposes, on 22^nd June 1983 he was made the subject of a two year probation order for two offences (and one offence taken into consideration) of indecent assault on a male under 14 years of age. The appellant had been 19 years of age at the time. While acting as a babysitter, he had masturbated the victim and placed his finger in the child's anus.
15. The pre-sentence report recorded that the appellant continued to deny all offences. He showed no remorse for his actions and was dismissive of the potential harm caused to X and J. The report identified that the appellant had been placed in a position of trust as a family friend, which he had breached. The victims were considered vulnerable due to their age. The appellant had satisfied his own distorted sexual needs by the commission of the offences. The report assessed the appellant as posing a high and immediate risk of harm to children, particularly against adolescent males. At the time of the report, the appellant had demonstrated no motivation to address his sexual offending. He maintained his innocence. The author of the report assessed him as posing a significant risk of harm to the public.
16. In passing sentence, the judge set out the facts as we have described them. She then referred to the Sentencing Council Guidelines on sentencing for sexual offences. In her view, the offences of rape fell within category 2 of the guidelines in terms of harm due to the severe psychological harm caused and the fact that both boys were particularly vulnerable due to their circumstances, their youth and their relationship with the appellant. The offences fell into category A in terms of culpability because the appellant had taken on a quasi-parental rule and there had been an abuse of the trust reposed in him by their mother. On this basis, the starting point after a trial was a term of ten years' custody, with a range of nine to thirteen years.
17. The sexual assault offences also fell within category 2A of the guidelines, due to the touching of naked genitalia – harm category 2 – and the abuse of trust – culpability B. The starting point was two years' custody, with a range of one to four.
18. The offence of causing a person to engage in sexual activity, which involved penetration, was also category 2A for the same reasons. The starting point was eight years' custody, with a range of five to thirteen years.
19. The judge then identified a number of aggravating factors: the appellant had a relevant previous conviction, albeit of some considerable age; the location of the offending, which took place in the victims' home and in their beds; when on holiday, the offences were committed with the other victim in the same room; and there had been ejaculation.
20. None of the mitigating factors within the guidelines applied.
21. The judge made clear that the overall sentence must reflect the number of offences and the fact that there were two victims. The pre-sentence report had assessed the appellant's future risk as high because of the refusal to admit his guilt. The court concluded that the risk could be managed by the imposition of a lengthy determinate sentence and an indefinite Sexual Harm Prevention Order and would therefore not impose a sentence under the dangerousness provisions of the Criminal Justice Act 2003. Concurrent sentences on counts 2 and 12 would reflect the overall criminality. All other offences would be dealt with by way of concurrent sentences.
22. Before passing sentence the judge said this:

This was, in my opinion, a campaign of rape against a young boy and serious sexual offending against another young boy. It was done in breach of the trust placed in you by their family – trust that you had engineered as you manipulated your way into and control the lives of these two boys.

23. In the grounds of appeal and in his oral submissions today, Mr Kelly submitted: first, that the total sentence of 21 years' imprisonment was manifestly excessive; second, that the facts of the case did not fall within the type of offending that the authors of the sentencing guidelines had in mind when referring to a "campaign of rape"; third, that there was no evidence of any physical or other pressure and no indicators of particularly depraved behaviour by the appellant; fourth, that no threats were made to prevent the reporting of the offending; fifth, that there was no sadism; sixth, that there was no extreme harm causing injury; seventh, that there was no humiliation; and eighth, that there was no severe psychological harm such as referred to in the guidelines. The rapes had been considered to be category 2A offences, which would therefore have a starting point for a single offence of ten years' imprisonment and a range of nine to thirteen years. Such a significant departure from the sentencing range should be reserved, submitted Mr Kelly, for the most serious type of offences and dangerous offenders.
24. In our view, the judge was right to take the most serious charges of rape and pass a sentence for those offences which reflected the overall criminality, while passing concurrent sentences for the other offences, although Mr Kelly accepts that another approach would have been to pass consecutive sentences in relation to each victim.
25. The guidelines for rape (at page 10) make clear that:

Offences may be of such severity, for example involving a campaign of rape, that sentences of 20 years and above may be appropriate.

26. We do not, however, regard the present offending to be what the Sentencing Council had in mind. In some cases, repeated offences of rape will attract life sentences, but there may also be cases where long determinate sentences, outside the maximum range for category 1A offences, will be appropriate for what may properly be regarded as a campaign of rape, in contrast to repeated offending.
27. In our judgment, the number and nature of the offences, marked as they were by the grooming and insidious psychological pressure, called for a long determinate sentence. We recognise the care with which the judge approached the sentencing process and the advantage that she had, having presided over the trial. We are, however, satisfied that the sentences that were passed on counts 2 and 12 were too long by a factor that entitles this court to intervene.
28. In our view, the sentences that should have been passed were terms of 18 years and not 21 years' imprisonment. Accordingly, we quash the sentences of 21 years' imprisonment on those counts and substitute concurrent terms of 18 years' imprisonment.
29. To that extent the appeals are allowed.