Watkins & Anor v R. (Rev 2)

These applications for leave to appeal against sentence have been referred to the full court by the single judge. We announced at the hearing that the applications were refused and gave a summary of our reasons, full reasons to be given in a judgment to be handed down in writing. These are our full reasons. The applicants pleaded guilty to sexual offences against children and young persons. Their victims are entitled to anonymity in accordance with the provisions of the Sexual Offences (Amendment) Act 1992. We have, in addition, renewed the order made in the Crown Court under section 39 of the Children and Young Persons Act 1993. The order applies to any child or young person in respect of whom an offence was committed. The order is that the court prohibits publication of the name, address, school or other particulars calculated to lead to the identification of such a person and any picture of such a person or including such a person. In order to preserve the anonymity of the victims we shall refer to them and to the female co-accused by their initials.

The applicant Ian Watkins was born on 30 July 1977 and is now aged 36 years. The applicant P was born on 8 December 1988 and is now aged 25 years. Their co-accused B is now aged 22 years. They were charged in an indictment containing 32 counts. B pleaded guilty to all but one of the counts affecting her on 3 June 2013. The applicants maintained their pleas of not guilty to trial, which was listed at Cardiff Crown Court before Royce J on 25 November 2013. On 26 November 2013 B was permitted to vacate her plea of guilty to count 1 and she pleaded guilty to alternative verdict offences in respect of counts 1 and 2. She and the applicants pleaded guilty as follows:

The maximum sentence for an offence of rape contrary to section 1 of the Sexual Offences Act 2003 (counts 1 and 2) and conspiracy to rape (count 9) and for an offence of sexual assault by penetration contrary to section 6 of the Act (count 8) is life imprisonment. The maximum sentence for offences of sexual assault on a child under the age of 13 years contrary to section 7 of the Sexual Offences Act 2003 (counts 3 and 10) is 14 years imprisonment.

Royce J concluded that the applicant Watkins was a dangerous offender within the meaning of section 229 of the Criminal Justice Act 2003 and, after noting the guidance provided by the court in Saunders [2013] EWCA Crim 1027 (Lord Judge CJ, Lloyd Jones LJ and Openshaw J), resolved to impose an extended sentence of imprisonment under section 226A of the Act. Having given a discount of 10% for the applicant’s guilty pleas, he imposed custodial terms of 15 years imprisonment upon counts 1 and 2 (attempted rape) and 14 years imprisonment upon counts 8 (sexual assault by penetration) and 9 (conspiracy to rape). A sentence of 3 years and 6 months imprisonment was imposed upon count 3 (sexual assault) and 3 years imprisonment upon count 10 (conspiracy to sexually assault). Upon the remaining counts of taking indecent photographs of a child (counts 18 and 19) possessing indecent photographs of a child (counts 13, 17 and 31) and possessing an extreme pornographic image (count 32) the judge imposed sentences of 12 months imprisonment. The judge adopted the principle that the leading sentences upon Watkins in respect of the two child victims should be consecutive; otherwise the sentences should be concurrent. In his sentencing remarks to Watkins the judge said:

“Sentences on your offences with [B] must be consecutive to the sentences on your offences with [P] but I have to bear in mind totality. I therefore adjust sentences in this way: the sentences on counts 1 and 2 will be 15 years [concurrent]; the sentences on counts 8 and 9 will be 14 years [concurrent but] consecutive [to the 15 year term]. Custodial term: 29 years. There will be an extended period of licence under section 226A of 6 years on those counts. All the other sentences will be concurrent. Your total sentence, Watkins, is, therefore, one of 35 years. In your case that means that you will have to serve two-thirds of the custodial term before you can be considered for release by the Parole Board. If you are released, you will remain on licence for the extended period.”

There is an issue as to whether the judge ordered that:

It is submitted on behalf of Watkins that since the judge’s reference to an extended licence period of 6 years was made immediately after the consecutive custodial term of 14 years imposed upon counts 8 and 9, concurrent, the plain meaning of the order is that only the sentences imposed upon counts 8 and 9 were extended sentences under section 226A of the Criminal Justice Act 2003. The order of the court is that which the judge announced and not the record made by the Crown Court (Kent [1983] 77 Cr App R 120). To the extent that there is any ambiguity in the judge’s order, it is submitted that it should be resolved in the applicant’s favour (R (Webb) v Swindon Crown Court [2011] EWHC 1507 (Admin), per Laws LJ at paragraph 15).

We accept these submissions. It is clear that the judge ordered an extended licence period of 6 years that would create a total sentence of 35 years. He did not impose consecutive extended sentences with an extended licence period of either 6 years or 3 years in respect of each group of counts. We can safely assume that the judge was well aware that he could not impose sentences whose custodial terms were consecutive but whose extended licence periods were concurrent. It follows, in our view, that the sentences upon counts 1 and 2 were determinate conventional terms of 15 years imprisonment concurrent; and the sentences upon counts 8 and 9 were concurrent extended sentences of 20 years imprisonment, comprising custodial terms of 14 years and extended periods of 6 years. However, the concurrent extended sentence of 20 years was to be served consecutively to the concurrent determinate sentences imposed upon counts 1 and 2, making 35 years in all. The inevitable result of this interpretation of the judge’s order is that he mistakenly informed the applicant Watkins that he would serve a minimum period in custody of two-thirds of the consecutive custodial terms (19 years and 4 months) when, in fact, he was liable to serve in custody one-half of 15 years followed by two-thirds of 14 years (16 years and 10 months in all). The principle is that the judge is responsible for the announcement of the appropriate sentence and his misunderstanding as to the effect of his sentence upon the offender’s release date is a secondary consideration and not determinative (Bright [2008] EWCA Crim 462, [2008] 2 Cr App R (S) 102, page 578). It follows that the Crown Court record requires amendment and we so order.

The applicant P was sentenced upon counts 8 and 9 (assault by penetration and conspiracy to rape) to concurrent terms of 14 years and 4 months imprisonment. Upon count 14 (sexual assault) she was sentenced to 2 years and 8 months imprisonment, consecutive, making 17 years imprisonment in all. Other sentences of 3 years imprisonment upon count 10 (conspiracy to commit sexual assault), 2 years imprisonment upon count 11 (taking an indecent photograph) and count 12 (distributing indecent photographs), and 12 months imprisonment upon count 15 (taking an indecent photograph) and count 16 (distributing an indecent photograph) were imposed concurrently.

It is conceded by the applicant Watkins that the judge’s finding of dangerousness and his imposition of an extended sentence were appropriate in the circumstances. It is submitted by Ms O’Neill QC on Watkins’ behalf that a discount of more than 10% was due for his pleas of guilty and that, having assessed individual sentences in accordance with the Sentencing Guidelines Council guideline on sentencing for sexual offences under the 2003 Act, the judge did not sufficiently adjust the sentence by applying the “just and proportionate” test to the issue of totality. The result is a total sentence that is manifestly excessive.

The applicant P contends that the sentence in her case was disproportionate to her culpability and the harm she caused as properly to be identified in the evidence. Mr Smith submits that the judge failed to reflect in the sentences imposed on counts 8 and 9 the malign influence exerted over P’s immature and damaged personality by Watkins.

Ian Watkins was the lead singer of a band called the Lostprophets. The band toured extensively and Watkins used his fame to secure sexual encounters with fans and, later, with their children. He recorded his sexual encounters, and retained and stored the recordings. Watkins adopted a number of different user names and email addresses in his use of social media. Both P and B were sexual partners of Watkins. Acting independently of one another, both allowed Watkins to commit sexual assaults on their infant children. With Watkins’ encouragement and for his gratification they sexually assaulted their own children. Watkins and B first met in December 2009. They communicated by means of Skype, telephone, and text messages. They commenced an intermittent sexual relationship from January 2010. On 22 April 2011 B gave birth to a son, IB. The identity of the child’s father is not known. From January to April 2012, B and Watkins engaged in a sexually explicit series of messages using online applications. Their conversation included discussion of plans to assault IB sexually. Watkins referred to drugging the child with “ice” (methamphetamine), to which B responded, “Can’t fucking wait to see our boy sucking your cock, high as fuck”. On 1 April 2012 the following exchange took place.

The Lostprophets were booked to stay at a hotel in London from 2 - 4 April 2012. B, accompanied by IB (aged almost 12 months), travelled to meet Watkins. During the early hours of 3 April, Watkins and B sexually assaulted IB; Watkins recorded the assault. B performed oral sex on Watkins. Watkins attempted to rape the baby orally (count 1). B and Watkins took turns to perform oral sex on the child (count 3). Watkins spat on IB’s bottom and attempted to penetrate the child’s anus (count 2). The judge found that the acts attempted in counts 1 and 2 were almost completed. Simultaneously, B took IB’s hand, placed it on her vagina and masturbated herself. Watkins then held the child up to the camera and masturbated him. On 24 May 2012 B sent a message, “The boy is ready to be abused”. On 2 August 2012 Watkins wrote, “Miss you and I want to take it to the next level when I’m back, if you know what I mean…are you still up for it? Tell [IB] daddy can’t wait to see him. I think we have gone easy on him so far. Time to really teach him, and MAKE him learn to love it”. On 9 September 2012 B took a photograph of herself, licking her son’s penis (counts 4 and 5) and sent the image to Watkins (count 6). The image was found stored on Watkins’ mobile phone (count 7).

P had one child, a female, KB, who was aged just over 12 months at the material time. She separated from her partner, the father of the child, in September 2012. P and Watkins communicated with one other from August 2012 via webcam, SMS, instant messaging, email, and mobile phone. On 17 August 2012 they held a conversation via Skype:

On 19 August 2012 P took four photographs of KB, including one that showed the child being digitally penetrated, and another in which KB’s vagina was being held open. (counts 14 and 15). She sent the images to Watkins (count 16). The images were subsequently found stored on Watkins computer (count 17). Having received the images, Watkins wrote “Fuck I can’t wait to stretch her.” Arrangements were made to meet at Heathrow on the 20 August 2012, but P did not arrive. On 23 August Watkins wrote, “We got [K’s] boy to use also…already had him sucking me and cumming down his throat”. The pair made plans to meet on 24 August and 11 September 2012. Neither meeting took place. On 12 September 2012 P sent a message to Watkins which asked, “You up for a cum sesh, fucker?” From around 7.30 am 13 September to 1.00 am on 14 September, whilst communicating via webcam technology, the pair engaged in sexually abusive conduct towards KB. Watkins recorded the abuse. In the footage, Watkins smoked a substance in a glass container. P held KB, whose nappy was removed, towards the camera. Watkins asked, “Can I teach her to suck my cock?”, and then masturbated himself. P moved the baby towards the camera, and showed her genitals to Watkins, who said, “Rub her little slit”. P then inserted her finger into KB’s vagina and Watkins said, “Look how much she loves that” (count 8). Counts 9 and 10 reflected plans made by Watkins and P on occasions when the two were corresponding with each other to sexually assault and rape KB. There is strong evidence that the child was taken to Watkins in Cardiff by P on 2 October 2012 but no recording was made or survived. Accordingly, neither Watkins nor P was charged with an offence related to that occasion. Scientific tests carried out on KB’s hair demonstrated traces of methamphetamine.

TT was born on 31 May 1990. She lived in the city of Boston, Massachusetts, in the United States. In October 2006, when was 16 years old, she met with Watkins at a Lostprophets concert. They exchanged contact details and within a week Watkins began communicating with TT via instant messenger software. She told him that she was 16 and a virgin; he asked if he could take her virginity and she agreed. She travelled from Boston to a hotel in New York City on 25 March 2007, where Watkins had booked a room. At his request she took a school uniform with her. Footage recorded by Watkins (count 18) shows that on more than one occasion he asked her how old she was, to which she replied, “Sixteen”. At Watkins’ instruction the girl changed into the school uniform and performed sexual acts on him. Watkins recorded himself having vaginal and anal sex with TT. He urinated on her face and asked her to drink his “piss”. At one stage he asked “Do you like being my underage slut?”

Watkins recorded himself in sexual activity with another 16 year old fan of his band, KJ (count 19). She performed oral sex on him and snorted a white powder which, Watkins had told her, was cocaine.

Indecent images and films involving children were found on various devices seized during searches of Watkins’ address. There were approximately 90 images in total. They included 45 at level 4 and two at level 5. The age range of the children was from 2 to 14 years (count 31).

Images and films were found that were classified as extreme pornography. There were 22 images of bestiality with dogs (count 32).

The judge was provided with pre-sentence reports upon both applicants. Watkins explained that when his encounters with young fans became more frequent, he sought to push sexual boundaries and seek more intense stimuli to achieve sexual satisfaction. He used cocaine and methamphetamine. He had a desire to shock others and to see how far people could be pushed. He said that he was ready to take responsibility for his actions, although he also stated that he could not recognise himself as the person depicted in the video evidence. He claimed to be pleased that nobody had been harmed. He indicated that he did not know to what extremes his behaviour might have led. The author of the report concluded that child victims were a means of domination and control over his co-defendants. The evidence showed an interest in sex that involved humiliation and violence. He presented a high risk of harm to children and to women. He had been the subject of adjudication for drug use in prison during December 2013.

P stated that she was suffering with post-natal depression at the time she first made contact with Watkins. Her relationship with her partner had deteriorated, although they remained in the same house. She was flattered by Watkins’ attention. The messages that were exchanged were “just words on a screen to keep him interested in me”. Watkins had been “going on and on” asking her to take photos of sexual abuse of her daughter. She wanted to please him, and complied with his wishes. She said that she was disgusted with herself, but sought to justify her actions by stating that her daughter had never been distressed or hurt by her actions. She considered that it was safer for her physically to abuse her daughter than to allow Watkins to do so. She stated that any suggestion that Watkins met her daughter in person was false. P appeared distressed and tearful when discussing her actions. She said that no punishment imposed by the court could compare with the loss of her child. She posed a low risk of reoffending, and did not appear to be sexually attracted to children, but in the author’s view she was easily manipulated to commit sexual acts on her child.

The judge was provided with a psychological report upon the applicant P from Dr Sanya Krljes, clinical psychologist, dated 1 December 2013 to which we refer in more detail below.

The judge identified the tender years of Watkins’ victims as the prominent aggravating factor. The pleasure Watkins derived from the commission of most serious sexual offences against babies was clear from the recorded material. He dominated his sexual partners and exercised a corrupting influence over them. The depravity of his sexual excitement was demonstrated by his interest in extreme pornography. His sexual offending was associated with drug use and he was without remorse. One of the passwords he used for securing the contents of an external hard drive was an encrypted version of “I fuck kids”.

P was a little older than B. Her conversations with Watkins, during which she encouraged Watkins to contemplate gross sexual assaults upon her infant daughter, ‘defy belief’. She was prepared to supply Watkins with indecent images of her daughter, taken by herself for Watkins’ sexual gratification and, during a live Skype session, to abuse her sexually while Watkins’ masturbated himself. Watkins and P had made an agreement that a 12 month old child would be raped by Watkins.

The only mitigation available was the late pleas of guilty tendered by both applicants. In P’s case there were some signs of remorse.

The judge identified the following aggravating factors for the purpose of applying the guideline on culpability: planning; targeting of vulnerable victims; offences committed by two persons acting together; abuse of trust and abuse of power; the use of drugs in association with the offences. As to harm: the ages of the victims; repeated assaults on the same victim; the recording of the abuse. While neither child had suffered physical injury it was alarming that one of them bore traces of methamphetamine abuse. Untold emotional harm was likely to be the consequence of the loss of a mother in circumstances of sexual abuse.

The starting point for sentence for an offence of rape of a child under the age of 13 years attended by either of the aggravating factors of breach of trust or two or more persons acting together was 13 years with a range of 11 to 17 years custody. The judge concluded that the multiplicity of aggravating factors identified justified a departure from the guideline range. Upon counts 1 and 2 (attempted oral and anal rape of KB) the judge adopted a starting point of 17 years, which, after a 10% discount for plea, resulted in a sentence of 15.3 years, which in Watkins’ case the judge further reduced to 15 years. He did not distinguish between Watkins and B save as to the application of the appropriate discount for pleas of guilty and to round down Watkins’ sentence to reflect the principle of totality. Upon counts 8 and 9 the judge did not distinguish between Watkins and P. P had, enthusiastically, penetrated her daughter at Watkins’ behest during “the lengthy and distressing Skype episode”. The judge’s starting point was 16 years custody which, after discount of 10% for guilty pleas, resulted in a sentence of 14 years and 4 months in each case, further reduced, in Watkins’ case, again to reflect totality, to 14 years. Count 14 represented a separate incident when P sexually assaulted her daughter by holding open her vagina in order to take a photograph, which she then sent to Watkins. In her case the sentence upon count 14 would be consecutive. The appropriate starting point was 4 years imprisonment, reduced to 3 years and 6 months after discount for plea. The sentence would be further reduced to 2 years and 8 months having regard to the principle of totality. Having already, in Watkins’ case, reduced the principal sentences by some eight months, the judge resolved to impose concurrent sentences for the offences of taking and possessing indecent images of children, including the taking of indecent images of the further and separate victims, TT and KJ.

Miss O’Neill QC, on behalf of Watkins, had no criticism to make of the judge’s assessment of dangerousness, nor his application of the Sexual Offences Act sentencing guideline to the facts of the case, nor to the judge’s decision to impose consecutive sentences in respect of the offences committed against two separate infant children. First, Miss O’Neill QC argued that in the exceptional circumstances of the case Watkins should have received more generous credit for his pleas of guilty than the conventional 10% that applies to pleas tendered at the commencement of trial. She explained her instructions that Watkins did not recall the activity that he had recorded and retained. Accordingly, it was necessary to obtain expert evidence to examine the material for authenticity. Eventually, Watkins recognised the inevitable and, by pleading guilty, saved every participant in the trial the duty of viewing distressing images of the utmost depravity. We reject this argument. It is perfectly clear that the material was recorded and retained for Watkins’ personal sexual gratification. The contents constituted incontrovertible proof of Watkins’ guilt. We have no reason to doubt the correctness of the judge’s assessment of the appropriate discount.

Secondly, Miss O’Neill QC submitted that the judge’s application of the principle of totality was inadequate. While conceding that the aggravating factors to be weighed were several and manifest she reminded the court that no physical harm was inflicted on the victims. The result was a total sentence that was disproportionate to Watkins’ overall offending. The Sentencing Council’s guideline on Totality applies to all sentence passed after 11 June 2012. The general principle is stated at page 5:

“The principle of totality comprises two elements:

1.

all courts, when sentencing for more than a single offence, should pass a total sentence which reflects all the offending behaviour before it and is just and proportionate. This is so whether the sentences are structured as concurrent or consecutive. Therefore, concurrent sentences will ordinarily be longer than a single sentence for a single offence.

2.

it is usually impossible to arrive at a just
and proportionate sentence for multiple offending simply by adding together notional single sentences. It is necessary to address the offending behaviour, together with the factors personal to the offender as a whole.”

The guideline explains that concurrent sentences will be appropriate when a series of offences of the same or a similar character are committed against the same victim or loser; and when offences arise out of the same incident. Consecutive sentences will be appropriate when the offences arise from unrelated facts or when concurrent sentences would not adequately reflect the criminality involved in their commission.

In our judgment, the imposition of consecutive sentences in Watkins’ case was, as conceded, correct in principle. The only issue that arises is whether the judge imposed a total sentence that, in a just and proportionate manner, reflected the whole of the applicant’s offending behaviour. These were offences against infant children of such shocking depravity that, in our judgment, a very lengthy sentence of imprisonment was demanded. The judge plainly applied the principle of totality by concentrating upon the appropriate total sentence for the combined seriousness of the offences charged in counts 1, 2, 8 and 9. Were it not for the principle of totality the judge would have been justified in imposing consecutive sentences on counts 18 and 19 significantly in excess of the sentences of 12 months imprisonment he in fact imposed concurrently. In our judgment, it is not demonstrated that the total sentence of 29 years custody with an extended licence period of 6 years was arguably manifestly excessive, and Watkins’ renewed application is refused.

Mr Smith, on behalf of the applicant P, argues that the internet conversations between P and Watkins were in several passages clearly fantasy and that she did not intend to expose her daughter to Watkins’ further sexual assaults. He submits that P was vulnerable, inadequate and under the malign influence of Watkins. Accordingly, a distinction should have been made between P and Watkins in the assessment of seriousness of counts 8 and 9. P was assessed by Dr Krljes during a five hour interview on 5 November 2013. P told Dr Krljes that, as a teenager, she had adopted a false internet identity ‘Danny Filth’, the lead singer of a metal band called ‘Cradle of Filth’. She was encouraged by the attention she attracted. She used internet chat rooms throughout her adolescent years. She would stay up all night conducting conversations using a false identity. She progressed to ‘cybersex’ sessions during which she and her correspondent would describe what they would do to one another. She met all save one of her boyfriends online. She became disillusioned with her relationship with the father of her child. He had, she said, little interest in their daughter and she suspected him of infidelity. She suffered from depression as a teenager. She was prescribed anti-depressant medication and received counselling sessions. She relapsed after the birth of her daughter. The applicant explained that she felt she was “just” a mother and housekeeper. Following her diagnosis she was offered post-natal support but her partner would not care for the child to enable her to attend appointments. The applicant denied that she had ever used a web camera while communicating with Watkins. Cell site evidence established P’s journey from her home to Cardiff on 22 October 2012, arriving in South Wales at about 12 noon and commencing her return journey at about 6 pm, arriving home at about 11 pm. P denied that she had taken her child to meet Watkins. She claimed that someone must have stolen her purse and used her bank card in Cardiff on that day. She claimed that others could have used her identity on the internet and denied that she had ever sexually assaulted her child. She found it difficult to explain how naked photographs of her child had been recovered by the police. She thought that her former boyfriend may have set her up.

Dr Krljes concluded that the applicant functioned intellectually at an average level. There were signs that she exaggerated her ‘psychological distress’ although she did not appear to be malingering. Her personality was consistent with historical records of interpersonal difficulties, emotional dysregulation, angry outbursts and lying. Testing did not reveal that she was vulnerable to suggestion under pressure but she was likely to be compliant with others’ requests. She suffered from a mixed personality disorder: she was borderline dependent, avoidant, anti-social and narcissistic. Her early life was notable for the unsatisfactory nature of her relationship with her father. She suffered feelings of rejection and inadequacy.

Dr Krljes interviewed the applicant for the second time on 12 December 2012 following her pleas of guilty. The applicant agreed that she had made first contact with Watkins having invented an imaginary internet identity to do so. She had been told by another fan that Watkins “had sex with kids”. The applicant said she chose not to believe her. However, Watkins himself told the applicant that “he had done stuff with kids”. The applicant accepted that Watkins told her that her daughter would have to be his too. She continued to deny that she had taken her daughter with her to meet Watkins in Cardiff but claimed that she had visited him twice at a hotel while her daughter was being cared for by a friend. She admitted that she felt sexually excited by Ian Watkins’ attention but denied that her assault of her daughter gave her any sexual gratification. Dr Krljes expressed the following opinion:

“It is likely that Miss [P] used her daughter as a tool to secure and maintain Ian Watkins’ interest. It appears that she became preoccupied with her own needs at the time, and this might have interfered with her ability to feel concern and empathy for her young child. She seemingly engaged in cognitive distortions by minimising the impact of sexual abuse on her daughter, which enabled her to continue with the abuse.”

We confirm that the court has viewed the recorded material. We do not accept that the applicant P was in any sense a victim. She knew of Watkins’ reputation and proceeded to offer her child as the sacrifice for Watkins’ continued interest in her. The pattern of P’s internet chats with Watkins repeated a precedent that was already established before she met Watkins. The difference was that sexual assault of KB was a price she was prepared to pay to get from Watkins the gratification she wanted. There is no sign of coercion, only of willing corruption and complicity. We do not consider that the judge erred in assessing the seriousness of P’s offending, the subject of counts 8 and 9. The applicant pleaded guilty to an offence of conspiracy to rape. By her plea she acknowledged that she had agreed with Watkins that her 12 month old daughter should be raped by Watkins with the intention that Watkins would commit the rape. That was not an expression of fantasy but was a criminal agreement of the utmost seriousness, made against the background that P had already sexually abused her daughter for Watkins’ sexual gratification. The distinction to be made between the two offenders was adequately reflected in the judge’s decision to pass a lengthy consecutive sentence on Watkins.

Both B and P committed further offences of sexual assault on their infant children and supplied Watkins with photographs of the abuse, reflected in B’s case in counts 4, 5 and 6, and, in P’s case, in counts 14, 15 and 16. The judge concluded that it was necessary to impose consecutive sentences, producing in P’s case a total of 17 years imprisonment and, in B’s case, a total of 14 years imprisonment. We do not consider that the judge erred in principle or that the total sentence imposed on P was arguably manifestly excessive. We also refuse leave in her case.