Frost, R. v

MR JUSTICE MACKAY: On 9th September 2005, at the Crown Court at Maidstone, the applicant pleaded guilty to a number of counts on an indictment which we will summarise below, and on 20th October 2005 pleaded guilty to further counts on the same indictment. He was sentenced on that date as follows: on ten counts of rape he was sentenced to life imprisonment on each concurrently; on nine counts of indecent assault on a female, the sentence was eight years' imprisonment on each concurrent and concurrent to the rape sentence; on six counts of taking an indecent photograph or pseudo-photograph of a child, eight years' imprisonment on each concurrent and concurrent to count 1, the first rape count; on 19 other counts of taking indecent photographs or pseudo-photographs of a child, five years' imprisonment on each concurrent and concurrent to the rape sentence; and, finally, a further 11 counts of possessing indecent photographs or pseudo-photographs of a child, five years' imprisonment on each concurrent and concurrent to the rape sentence. The total sentence was therefore one of life imprisonment. The period of eight years, less the time spent on remand, was specified under section 82A of the Powers of Criminal Courts (Sentencing) Act 2000 as the minimum term. He was required to comply with the provisions of Part 2 of the Sexual Offences Act 2003 in terms of notification to the police on an indefinite basis, and disqualified from working with children under section 28 of the Criminal Justice and Courts Services Act 2000. A Sexual Offences Prevention Order under section 104 of the Sexual Offences Order 2003 was made and an order was made for the forfeiture of certain computers, cameras, images and discs.

Summarising those matters, what were called the contact offences, the offences of rape and indecent assault, 20 of them in all, were committed within the period of January 2002 to January 2004, as were the first batch of the six offences relating to indecent photographs of children. The making and the possession of the 30 further indecent photographs fell in the period that ran from 1st January 2005 to 7th March 2005.

These matters related to abuse of three girls who were step-daughters of the applicant. The applicant met their mother in 1997 or 1998, when the girls would have then been aged 8, 5 and 2. The relationship developed between the applicant and the mother of the girls and there came a time when he moved in with them. He was unemployed but the mother worked full-time in two jobs at a hospital, leaving the girls in his care. The applicant in due course fathered two children by the mother of the three girls and in due course they married.

Between the period covered by the contact offences, that is to say the two years beginning January 2002, sexual relations between the couple cooled and in turn, and in place of them, the applicant appeared to become obsessed with a computer that he had purchased on which he spent increasing amounts of time.

In April 2004 the youngest of the three girls gave cause for concern at her school. She had been behaving inappropriately in the toilets with other girls. She was eight at the time. The mother confronted the applicant about this and he gave a story that this girl had climbed into his bed and he, mistaking her for his wife, had fondled her in a sexual way. Though clearly the mother had her reservations about this and though the applicant was cautioned as a result, she did not eject him from the home and they continued to live together. But there was this difference from this point onwards: she never left the children alone with him, she gave up her job and stayed at home. As she described it, his obsession with the computer continued. He would spend an enormous amount of time shut away in his room watching it. There was a technical fault with it which developed in the early part of 2005 and the applicant became most anxious that that fault should be repaired. He was by now out of work and she was staying at home. She became curious about his obsession and went to his room and saw the computer was working. She later took some DVDs from his room, took them downstairs and played them. She discovered that on the DVDs were pornographic images of children being sexually abused and then, no doubt to her horror, she saw her three daughters on the same DVDs being abused by the applicant. She spoke to the two oldest girls, who confirmed certain aspects of the abuse, and the applicant was then arrested and his photographic and computer equipment taken.

In all there were 28 films recovered which involved his step-daughters. Every form of sexual abuse that could be imagined was on them: touching, digital penetration, anal rape, vaginal rape, oral sex both ways, the use of objects on the girls, anally and vaginally and ejaculation on them. His voice could be heard on the films giving them instructions as to what to do. Some of the films appeared to be filmed by the children themselves as they abused themselves under his instructions.

As to the other counts on the indictment relating to pornographic images, in all about 4,000 such images were found, ten of which were at the most extreme level as defined in the case of Oliver in this court.

In due course the applicant was interviewed and admitted all these offences. As to the two eldest girls they only revealed a certain amount of the abuse they had suffered at his hands, but that did disclose the fact that they had been raped once or twice a week. This had all stopped when their mother gave up work and stayed home full-time. The youngest girl was not prepared to make any disclosures in her interview. Medical examinations confirmed long term abuse.

The applicant was a man of previous good character and is now in his mid-thirties.

There was before the sentencing judge no pre-sentence report and no medical or psychiatric evidence. Even after the judge indicated, having seen examples of this material in his room with counsel, that he was thinking in terms of an indeterminate sentence, no request was made by the defence for such reports to be prepared.

The aspect of the sentence that is sought to be challenged in this application is the life sentence on the counts of rape. For that to be justified, the offences of course must be sufficiently serious to begin with to support a long sentence of imprisonment, and, secondly, the defendant must be shown to be of such an unstable character as to render it not possible to say with any reliability when he would no longer pose a significant risk of serious harm to the public from further offending.

As to the first of these requirements, and while the use of superlatives has to be sparing in sentencing remarks, or for that matter in appeals in this court, this court can fully understand why the judge, who is very experienced in dealing with such matters, described this catalogue of offending as "one of the worst and most horrifying cases of child abuse which has ever come before this court". Plainly, the first condition is met.

As to the second aspect of the case, there is no medical evidence. The judge, in justifying his sentence, quite plainly relied on the scope, frequency and depth of the offending over a two year period as indicating the risk that this defendant posed. It was stopped only by the partial detection of his activity which sparked the mother's return to the home, but notwithstanding that that avenue for physical gratification was closed to him, the applicant, with some determination, pursued his taste for paedophilia on his computer and gained his gratification in that way in the home, acquiring and storing voluminous fresh material of abused children, as well, no doubt, as continuing to enjoy his back-catalogue of the abuse that he had personally inflicted on his step-daughters. Therefore, said the judge, he had shown a continuing obsession with material of this type and therefore he was to be described as a devious and committed paedophile. In the judgment of this court, that description was merited.

In his arguments today in support of this renewed application, Mr Maley says this. There were no threats of violence used to encourage and persuade these girls to take part in these activities, and the plea of guilty is significant, not as justifying the difference between an indeterminate and a determinate sentence on its own, but as an indicator that this applicant has, by that plea, shown that he recognises his culpability, shown that he wishes to spare these girls the ordeal of a trial, and that therefore he is on the way to recovery and beginning the journey that he needs to make to the stage where he will not be dangerous to young girls ever again. He says that the applicant was prepared to trust his counsel's assessment of the material and did not require to see it himself and form his own decision.

All these matters may be what Mr Maley says they are, they may be the green shoots of a growing recovery from this pathological condition from which the applicant quite plainly suffers and which has resulted in such appalling suffering for these three young girls. That is not enough, in our judgment, to gainsay the judgment that the learned judge quite evidently formed, that he presents at the present time, and will present for the foreseeable future, a serious danger to young children, forming that judgment on the basis of what he had done, how long he had done it for and how he had continued to be obsessed, as he put it, with material of that nature.

We agree with the judge's assessment. We do not think it is arguable that a life sentence was other than both appropriate and necessary to meet the justice of this case. There being no challenge to the minimum term the judge imposed or any other feature of his order, this renewed application is refused.

LORD JUSTICE KEENE: Thank you very much, Mr Maley. Were you appearing pro bono today?

MR MALLEY: Yes, my Lord.

LORD JUSTICE KEENE: That is extremely kind of you. This court is always very grateful to members of the bar who are willing to assist on that footing. Thank you.