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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 >> BXP & Anor, R. v [2024] EWCA Crim 1659 (05 December 2024)
URL: http://www.bailii.org/ew/cases/EWCA/Crim/2024/1659.html
Cite as: [2024] EWCA Crim 1659

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WARNING: reporting restrictions may apply to the contents transcribed in this document, particularly if the case concerned a sexual offence or involved a child. Reporting restrictions prohibit the publication of the applicable information to the public or any section of the public, in writing, in a broadcast or by means of the internet, including social media. Anyone who receives a copy of this transcript is responsible in law for making sure that applicable restrictions are not breached. A person who breaches a reporting restriction is liable to a fine and/or imprisonment. For guidance on whether reporting restrictions apply, and to what information, ask at the court office or take legal advice.
Neutral Citation Number: [2024] EWCA Crim 1659
CASE NO: 2023 04355/04422 A3

IN THE COURT OF APPEAL
CRIMINAL DIVISION
ON APPEAL FROM THE CROWN COURT AT
NEWCASTLE UPON TYNE
HER HONOUR JUDGE CLEMITSON
CP: 10U30160023 & 10U30162823

Royal Courts of Justice
Strand
London
WC2A 2LL
5 December 2024

B e f o r e :

LORD JUSTICE JEREMY BAKER
MRS JUSTICE JEFFORD
SIR NIGEL DAVIS

____________________

REGINA

- v -

BXP
ADK


(1992 Sexual Offences Act applies) 

____________________

Computer Aided Transcript of Epiq Europe Ltd,
Lower Ground, 46 Chancery Lane, London WC2A 1JE
Tel No: 020 7404 1400; Email: rcj@epiqglobal.co.uk (Official Shorthand Writers to the Court)

____________________

MR JEREMY BARTON appeared on behalf of the Appellant BXP
MS LORRAINE MUSTARD appeared on behalf of the Appellant ADK
MR VINCENT WARD appeared on behalf of the Crown

____________________

HTML VERSION OF JUDGMENT (AS APPROVED)
____________________

Crown Copyright ©

    MRS JUSTICE JEFFORD:

  1. The provisions of the Sexual Offences (Amendment) Act 1992 apply to this offence. Under those provisions, where an allegation has been made that 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 offence. This prohibition applies unless waived or lifted in accordance with section 3 of the Act. For the avoidance of doubt that reporting restriction applies to the appellant BXP's daughter who was a witness to certain offences and the appellants will also be anonymised in this judgment to prevent identification of any complainant.
  2. The male appellant ('BXP') was charged with 13 counts all involving sexual offences committed against children.
  3. On 2 August 2023, in the Crown Court at Newcastle-upon-Tyne, the appellant pleaded guilty to all counts except counts 1 and 13. On 30 August 2023, in the same court, he changed his plea on counts 1 and 13 to a plea of guilty. On 20 November 2023 the appellant BXP (then aged 37) was sentenced for those offences. The sentence comprised a determinate sentence of 15 years' imprisonment and an extended licence period of 5 years on count 1 and concurrent sentences on all other offences.
  4. The female appellant ('ADK') was the partner of BXP. She was charged with six counts involving sexual offences against children. On 2 August 2023, in the Crown Court at Newcastle-upon-Tyne, she pleaded guilty to all offences. She was sentenced on 20 November (then aged 30) and the total sentence comprised a determinate sentence of 10 years' imprisonment and an extended licence period of 5 years on count 2, with concurrent sentences on all other offences.
  5. Both appellants appeal against sentence by leave of the single judge.
  6. The Facts

  7. On a date between 30 November and 25 December 2022 a party was held at BXP's home which was attended by a number of teenage girls aged between 14 and 15. The appellant BXP remained with the girls, drinking alcohol and dancing with them. When the girls were getting ready for the party, he called them "sluts" because they had "their tits and arses hanging out". He whispered or commented to a number of them that they were his favourite. The girls drank alcohol under his supervision and at one point he went out to the shop to get more alcohol. He then encouraged one of the girls, complainant no 2, to drink more alcohol even though she thought she had had enough.
  8. Over the course of the evening he grabbed the waist or hips of five of the girls and pressed or rubbed his penis against their bottoms. One of the girls, complainant no 4, described how he rubbed up against her as he passed on his way from the living room to the kitchen. He took hold of her waist or hips and pulled her to him so that his penis pressed against her bottom. This complainant was at the time outside the bathroom. She went into the bathroom to be sick. While she was there the appellant came into the bathroom, removed the jumper that was tied around her waist, rubbed her stomach from behind and pressed his penis against her bottom.
  9. Each of these girls complained, and the appellant was arrested for these offences on 28 May 2023. These offences formed counts 3, 4, 5, 6, 7 and 8 on the indictment, by which the appellant was charged with sexual assault contrary to section 3 of the Sexual Offences Act 2003.
  10. In relation to complainant no 2 the appellant had previously been invited to join a WhatsApp chat group which included her and he had then started to message her privately. She said that the messages "started to get weird". One message was accompanied by a picture he had taken with a very young child at his feet. The message read "dangerous shit". Complainant no 2 did not understand this. In another message he asked her, "Why isn't your little ass in bed?". On another occasion the appellant saw images of the complainant at another party while she was Facetiming a friend and he commented that complainant no 2 had a nice bum. He also brought that up in messages with her. He checked with her whether her parents checked her messages and then told her that it was her arse that had caught his attention and he told her that her WhatsApp picture was revealing. He then told her she was "top of the batty crew by a mile".
  11. The appellant claimed in these messages not to be a dirty little man craving a little lady, before telling her that he loved watching her dancing around with "her arse cheeks out with no fucks given". He mentioned to her someone who had "shagged another lad's mother" and had made video recordings, which he said he had made available to the complainant's friend as an introduction to pornography. After that he apologised to complainant no 2 for checking out her "arse" before telling her that he had taken a "pic from the sesh night" (probably referring to the December party).
  12. These messages formed the basis of count 2, by which the appellant was charged with engaging in sexual communication with a child contrary to section 15A of the Sexual Offences Act 2003.
  13. On his arrest the appellant's phone was seized. Videos and images found on this phone led to the arrest of the female appellant ADK as well and the seizure of her phone.
  14. On BXP's phone there was a 27-second long video of the buttocks of a very small female child aged 6-8 years with whom both appellants were in a position of trust and whom we shall refer to as complainant no 1. In the video BXP could be seen sucking one of his fingers and digitally penetrating this child's anus or vagina. The child appeared to be asleep. This formed the basis of count 1 on his indictment. On one of the phones there was also a 20-second video of ADK penetrating the same child's vagina with her finger. It appears, and counsel has told us today, that this was taken on the same occasion. Certainly both appellants were involved in the other's assault. This formed count 2 on ADK's indictment. On these counts each appellant was charged with assault of a child under 13 by penetration contrary to section 6(1) of the Sexual Offences Act 2003.
  15. On ADK's phone there was a 20-second video of BXP performing oral sex (by licking) on the same child, which formed the basis of count 13 - a charge of sexual assault of a child under 13 contrary to section 7(1) of the Sexual Offences Act 2003.
  16. There were five further videos of the appellant touching the child's foot with his penis and masturbating on to the foot (count 15) and an image of him pressing his penis into her groin or bottom area (count 14). Both these counts charged him with sexual assault of a child under the age of 13.
  17. There was a 41-second video showing BXP moving a child's knickers to one side, exposing her vagina. There was a 44-second long video which was sent by him to ADK with him saying, "Loved my dick touching her the other night", to which ADK responded, "It was hot as fuck". BXP then sent a still image of his penis pressed against a child's bottom in the same child's bed. ADK responded by saying, "Fuck, you should have rubbed your dick right into her little pussy". BXP then sent ADK a 19-second video of him pressing his penis against the knickers being worn by the child. He sent ADK two further videos (22 and 14 seconds long respectively) of him posing with his penis touching the same child. Another image showed a child lying face down while BXP held his penis in one hand and touched the child's bottom with the other. There were other category B and C images found on his phone which it is unnecessary to recite.
  18. BXP was charged on counts 9, 10 and 11 with making indecent photographs of children - the counts relating to category A, B and C images respectively.
  19. On count 16 he was charged with a further offence of taking indecent photographs (category C) in relation to a 2-year-old child whom he knew and who was being toilet trained and not wearing a nappy.
  20. So far as ADK is concerned, in addition to the count of assault by penetration, she was charged on counts 3, 4 and 5 with making category A, B and C images respectively, including both moving and still images. On count 6 she was charged with sexual assault of a child under the age of 13. A 17-second video of her touching the child's bottom was recovered.
  21. Lastly, there was on ADK's phone, a video of BXP caressing and penetrating her vagina with his finger while complainant no 1 was sitting on his lap, facing away from the sexual activity. This was the basis of count 12 on BXP's indictment and count 1 on ADK's indictment. Each appellant was charged with engaging in sexual activity in the presence of a child contrary to section 11(1) of the Sexual Offences Act 2003.
  22. We add that the date range of all these offences was substantial and the dates ranged from 2021 to 2023.
  23. Sentencing

    Material available to the sentencing judge

  24. Neither of the appellants had any relevant previous convictions and ADK was of entirely good character.
  25. For sentencing, the judge had available to her victim personal statements from one of the teenage complainants and from the mother of another, and from the mother and sibling of complainant no 1. We have read updated statements from the last two. We do not intend to diminish the significance of these statements by summarising them. They set out the obvious upset and distress that would be felt. The mother is particularly concerned that complainant no 1, who does not at present know what happened to her, will one day find out and she is distressed about what may then happen. Complainant no 1's sibling feels guilt -- wholly misplaced, we would add -- for not protecting her.
  26. There was a pre-sentence report on BXP. The pre-sentence report recorded that BXP denied any sexual interest in children and expressed remorse. However, the author of the report was unable to say whether that was genuine remorse or regret at the impact his offences had now had on his life. BXP dismissed the offences against the teenage girls as him being "overly flirtatious". He had difficulty talking about the assaults on Complainant No 1. He appeared to blame ADK for introducing role play into their sex life, which included the role of a child. He said that these offences were only ever committed when they had taken drugs and alcohol. The author said that whilst BXP denied having ever experienced sexual attraction towards children, this was questionable given the numerous offences perpetrated against female children of various ages. The author expressed the view that BXP was acutely aware of the potential consequences of acknowledging outright responsibility and that throughout the interview there was evidence of minimisation and justification of his actions.
  27. There was a clinical psychologist's report and a mental health assessment, neither of which identified any significant mental health issues.
  28. The pre-sentence report in respect of ADK reported that she too denied any sexual attraction to children and said that she was going along with BXP's fantasies. The author, however, was unable to conclude whether she had any attraction to children. The author referred to messages which showed ADK actively involved in sexualised conversation with BXP. Some of the messages included statements about her being sexually aroused by children of a young age and with whom she had contact, which ones she was particularly attracted to, what shape their penis might be, and how she intended to make more effort to look at them in circumstances when they were naked or partially clothed. The content of the messages indicated that she was actively engaged in BXP's fantasies and her version that she was only engaged in such conversations because she loved him was, in the view of the author of the pre-sentence report, highly questionable. The author noted that ADK was ashamed of what she had done but considered there to be a lack of real remorse and empathy.
  29. There was a psychologist's report on ADK which identified her as susceptible to BXP's influence and implied that there were elements of coercive control in the relationship. The psychologist considered the influence of BXP a significant factor in ADK's offending but also that ADK had developed beliefs about sexual abuse during her relationship which had enabled her to overcome the moral barriers to her behaviour.
  30. There was a further psychiatrist's report on ADK which reported no mental disorder but again addressed the influence of BXP on her offending.
  31. A friend of some 20 years, who was fully aware of the nature of ADK's convictions, gave a character reference for her and expressed the view that ADK had acted wholly out of character, that her mental health had suffered since she began her relationship with BXP, and that she was very remorseful.
  32. BXP's Sentence

  33. In passing sentence on BXP the judge said that she would give 25 per cent credit for the guilty pleas on counts 1 and 13 and a full third credit for the guilty pleas to all other offences.
  34. The judge took as the lead offence count 1, assault by penetration of a child under the age of 13. She placed the offence in category 2. She assessed the culpability as category A because of the abuse of trust, the recording of the assault and the fact that BXP acted with another also in a position of trust. She assessed the harm as category 2 because of the particular vulnerability of the child - most significantly because she was asleep. The judge was careful not to take this into account as an aggravating factor, so avoiding double counting.
  35. In accordance with the Guideline, the judge's starting point was then 11 years' imprisonment and the range 7 to 15 years. The judge would have set the determinate term for this single offence at 10 years. Giving 25 per cent credit for the guilty plea, that would, we observe, represent a notional sentence of 13 years and 4 months after trial which is towards the top of the range. The judge considered that an uplift above the starting point for this single offence was warranted because of the multiple factors present in terms of culpability.
  36. Her sentences on all other counts were to run concurrently.
  37. In relation to the counts of sexual assault against complainant no 1 (that is counts 13, 14 and 15) the judge appears similarly to have placed the offences in category 2A. The starting point was therefore a sentence of 4 years' imprisonment and the range was 3 to 7 years.

    On count 13 she passed a sentence of 4-and-a-half years' imprisonment; on the further counts 14 and 15, a sentence of 4 years' imprisonment; for count 2, her sentence was 4 months' imprisonment; for counts 3, 4, 6, 7 and 8, 6 months' imprisonment; for count 5, 20 months' imprisonment; for count 9 (category A images) 5 years and 4 months; for count 10 (the category B images) 2 years; for count 10 (the category C images), 16 months; for count 16 (the further category C image), 16 months; and lastly, for count 12, 6 months' imprisonment.

  38. Having made these sentences concurrent, the judge then reflected them by uplifting the determinate term on count 1 to one of 15 years' imprisonment.
  39. BXP's Appeal

  40. BXP argued in his grounds of appeal that the judge erred in categorising count 1 as falling within harm category 2 and that she ought to have found harm category 3. It was submitted that the victim personal statements (in this case particularly from complainant no 1's mother) showed that the degree of harm was no greater than would be expected in a case of this nature. This submission appeared to be based on the premise that the judge's reasoning for finding this level of harm was that there was severe psychological harm.
  41. It has been fairly conceded by the appellant before us that that ground of appeal on the basis of categorisation is not sustainable. The finding of category 2 harm was in fact based on the circumstances that the child was asleep and therefore particularly vulnerable, and we agree with that approach of the sentencing judge.
  42. The appellant now emphasises that the issue is where this offence sits within category 2A and submits that it should not have been placed by the sentencing judge at the top of the category. The position is that the child at present does not know what happened to her and the legitimate concern of her mother is the harm that will be caused to her when she becomes aware. As we have said, that was not the reason for the categorisation of the harm but it is something that should be taken into account in sentencing.
  43. Taking all these matters into account, both the elements of culpability and of harm, we do not regard the notional sentence on count 1 as having been in itself manifestly excessive.
  44. In his grounds of appeal, BXP next recognised that he was also to be sentenced for the oral sexual assault as well as for the child images offences but argued that that did not justify the uplift of 5 years. That significantly downplays the extent of his offending. However, in granting leave the single judge considered that the individual sentences which we have set out would have been appropriate following a trial but might be thought to be excessive in light of the guilty pleas. The single judge noted that the sentencing judge had not expressly mentioned the reductions for the guilty pleas, although he said that might not necessarily be of significance.
  45. It seems to us clear that the sentencing judge did give credit for the pleas, as she had indicated. Taking the sexual assaults (counts 13, 14 and 15) by way of example, the sentence on count 13, with a 25 per cent credit for plea, was 4˝ years; and the sentence on counts 14 and 15, with a third credit for plea, was 4 years. In both cases the sentence before plea would have been 6 years' imprisonment. Again that was towards the top of the range.
  46. It seems to us then that rather than interrogating each individual sentence, we have to consider whether, as a result of these sentences or in any event, the sentence on count 1 which was actually passed was in totality manifestly excessive.
  47. BXP's offending can properly be described as predatory. It took place over a lengthy period and entirely within his own home where visiting children and a child with whom he had a relationship of trust were entitled to be safe. His offences targeted children of a range of ages. By his own admission they took place under the influence of drink and drugs. In relation to the teenage girls, the lower sentences reflected the nature of the touching, but this conduct was repeated and committed in circumstances where the girls had been encouraged to drink, making them more vulnerable. His communications with complainant no 2 had a strong element of grooming. In relation to the very young child, the offences were largely contact offences. The image offences were aggravated by the images being of this child.
  48. All these were very serious offences and the sentences for count 1 and for count 13 and 14 and the sexual assaults of the teenage girls at the very least could readily have been made consecutive. We have considered the overall sentence bearing that in mind.
  49. In our judgment, in taking the approach of uplifting the sentence on count 1, a substantial uplift after plea was justified, even allowing for the fact that that sentence was already towards the top of the range which, itself, reflected the culpability in the abuse of trust, the recording of the offence, and the vulnerability of the sleeping child. But the effect of the sentence passed was to a large extent, and despite the concurrent sentences, to add on to that a sentence one which was similarly towards the top of the range. In our judgment that did not sufficiently take account of totality. Taking that into account, we consider that the appeal should be allowed and an extended sentence with a determinate period of 13 years' imprisonment and an extended licence period of 5 years should be substituted on count 1. In those circumstances we do not interfere with any of the other concurrent sentences.
  50. ADK's sentence

  51. In sentencing ADK the judge indicated that she would give a full third credit for all the guilty pleas.
  52. The judge treated ADK as of good character. She set out that ADK was also in a position of trust in relation to complainant no 1. She said that ADK had willingly participated in the abuse. ADK joined in with the physical abuse and the making of images and engaged in messages with BXP which were intended to "titillate" him. She said then that it did not matter to the seriousness of ADK's behaviour whether she had any sexual interest in children or not.
  53. As with BXP, the judge took as the lead offence the assault by digital penetration (count 2 in ADK's case) which she placed in category 2A. Her sentence after full credit for plea would have been one of 8 years' imprisonment,so it can be inferred that her sentence before credit would have been one of 12 years' imprisonment.
  54. The judge's sentence on count 1 was 16 months' imprisonment; for the category A images, 4 years and 8 months; for the category B images, 20 months; for the category C images, 12 months; and for count 6, the sexual assault, 2 years and 8 months. In relation to the last of these, although not expressly set out by the judge it can again be inferred that she placed the offence in category 2A and, before credit for plea, would have passed a sentence of 4 years' imprisonment, which is the starting point for this offence.
  55. All these sentences were to be made concurrent to the sentence on the lead offence and the judge then uplifted the sentence on that offence to one of 10 years' imprisonment.
  56. ADK's Appeal

  57. For the reasons we have given, we reject any submission that the judge ought to have found category 3 harm. As put in the grounds of appeal, it was submitted on ADK's behalf that the notional sentence of 12 years before credit for plea was "at the outer limits" of category 2A and therefore necessarily amounted to a sentence in the lower part of category 1A and was thus manifestly excessive. We disagree. A sentence of 12 years' imprisonment was in fact below the range for category 1A and well within the range for category 2A.
  58. Before us today Ms Mustard has maintained on ADK's behalf that there was, however, no reason for the judge to have gone beyond the starting point for that offence.
  59. Again we disagree. Bearing in mind the extent of culpability, as the sentencing judge did, we do not consider this notional sentence to have been manifestly excessive, but it was nonetheless a high sentence within the relevant range.

  60. The issue which the single judge identified and which arises in respect of ADK, as with BXP, is whether the uplift of a further 2 years after a further full credit for plea resulted in a sentence that was manifestly excessive. As we said in relation to BXP's appeal, in our judgment, and taking the approach of uplifting the sentence on this count, a substantial uplift after plea was justified. However, in making that uplift it was appropriate to bear in mind that the sentence on count 2 was already towards the top of the range for a single offence and that that reflected the culpability in the abuse of trust, the recording of the offence, and the vulnerability of the sleeping child. The effect of the sentence was, despite the concurrent sentences, to add on a sentence for a further offence, although in this case one that reflected the guideline starting point. Even allowing for that in this case, we similarly consider that the sentencing judge did not sufficiently take account of totality. Taking account of totality, we consider that the appeal should be allowed and an extended sentence with a determinate term of 8 years' imprisonment and an extended licence period of 5 years should be substituted on count 2. In those circumstances, we do not interfere with the other concurrent sentences.
  61. For the avoidance of doubt we add that there was no challenge to the findings of dangerousness, the imposition of an extended sentence or the period of the extended licence, all of which, as we have indicated, are therefore unaffected by our judgment.

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