DJ, R v

This appellant renews an application for leave to appeal against conviction and appeals his sentence with the leave of the single judge.

The history will show that he has been responsible for a very large number of serious sexual offences committed against young girls over a considerable period. The offences involved many aggravating features. To some of the offences the appellant pleaded guilty but two trials were necessary. The appellant was convicted at each of those trials. On 11th February 2014, in the Crown Court at Guildford, the appellant was sentenced to an extended sentence of 39 years comprising a custodial term of 33 years and an extension period of 6 years. In addition a victim surcharge order was made as well as an indefinite sexual offences prevention order.

The full details of the numerous offences are set out in the grid below identifying the offences, whether the matter was a plea or a trial and setting out the individual sentences imposed:

We summarise the offences as follows, noting that the summary inevitably loses the granular detail of this dreadful offending. We will approach the matter indictment by indictment.

Indictment 0272: this offence took place in 2013. It involves meeting a child following grooming. On 9th February 2013 the appellant met a 14-year-old girl, BP, on a website. He took her to a hotel in Farnborough. Once there she insisted she wanted to leave. After receiving a text message from the girl's mother the appellant took her home.

Shortly afterwards he was arrested and the hotel room was searched. A bottle of champagne was found next to the bed. The appellant's mobile phone was seized. It contained a large amount of pornographic material involving other young girls. In due course some of those were identified and spoken to by the police. A month later BP had to be sectioned overnight as she had self-harmed by stabbing herself in the stomach and arms.

Trial 1 involving indictments 7113 and 7122, which were joined, primarily concerned offences of rape and other sexual offences against SJ, the appellant's daughter. There was also a count relating to another girl, LS. The offences against SJ were committed over many years. She went to the police in February 2013 after the appellant's arrest as already described. She said that the appellant began touching her when she was four-and-a-half and that when she was 5 he began to have sexual intercourse with her both vaginally and anally. This continued on a very regular basis over many years. The appellant said that it was punishment for her being bad. On occasion he would hit her and verbally abuse her. She was also forced to perform oral sex with him holding her nose so as to force her mouth open. Amongst the episodes of sexual abuse which we described were those which occurred when she was around 12, when the appellant used to take her swimming on a regular basis. He regularly abused her in the swimming cubicles. She described also frequent offences which took place in the appellant's car.

In all, the offending went on for about 10 years. The appellant told SJ that if she did not do as he wished he would hurt her and her mother. On other occasions he threatened her that she would be taken away by the police. She was made to feel that what was happening was her fault.

The second girl on this indictment, LS, was identified from material on the appellant's mobile phone. She described an occasion when she was aged between 8 and 10 when the appellant persuaded her to put her hand on his penis and to masturbate him. The overall time frame covered by this indictment is between the early 2000 and 2013.

Trial 2 involved the joined indictments 0512 and 7318. They concerned sexual offences against two girls, DC and AF, committed between 2008 and 2010. DC was best friends with one of the appellant's daughters. When she was 15 she went to that girl's birthday party at the appellant's home. He approached her in the living room, put his hand on her leg and touched her crotch area. She got up at once and went to the kitchen. The appellant followed her. He put his hand on her vaginal area rubbing it over her jeans while putting his other hand down the back of her jeans and felt her bottom.

The second girl, AF, met the appellant when she was 15. She was a runaway. She entered into a form of relationship with the appellant. There was regular sexual intercourse, oral sex and other sexual activity including masturbation. The appellant photographed or filmed some of this activity which was found on his mobile phone. AF was a particularly vulnerable child. She had mental deficits which meant that she had a functioning level of a 6 to 8-year-old.

Indictment 7057 involved offences committed during the period 2009 to 2013. Two girls are involved. LJ, the appellant's niece, who was aged between 8 and 11, and JK who was 15 at the relevant time. Following examination of the appellant's mobile phone offences against LJ were discovered. She told the police that every time the appellant came to stay at her home he would enter her bedroom at night and abuse her. He began by touching her private parts and making her touch his and to masturbate him. This then escalated into the appellant inserting his penis and finger into her vagina and anus. He would suck her breasts and get her to suck his penis. He also masturbated in front of her. She was told never to tell her parents or she would be taken away. She was also plied with presents and given money. She was asked to send the appellant photographs of herself and the appellant filmed some of the intercourse that took place including occasions when this happened in the presence of LJ's brother. Although LJ was probably only 8 when this abuse began, the judge said that she looked considerably younger than that.

JK was traced from an image on the appellant's phone. She had met the appellant on the Internet. They exchanged explicit photographs and sent sexual text messages. Eventually they met. When they did JK was wearing her school uniform. On the first occasion there was mutual touching in the appellant's car. On the second meeting they went to appellant's flat and had sexual intercourse and oral intercourse including ejaculation on to JK's face. Thereafter they met regularly for sex and the appellant brought sex toys. He filmed their encounters.

When JK tried to end this abuse the appellant became verbally abusive and then threatened to send indecent images he had taken of her to her father and to her school. She also began to receive sinister text messages as if someone was following her.

Indictment 7200 concerns rape and other offences committed against JD, a girl aged 14. She was also traced through the appellant's mobile phone. The appellant had contacted her on the Internet. He sent a picture of a young man and his phone number. He was aware of the girl's age. The pair eventually met at a hotel in April 2012. The appellant bought her presents and plied her with alcohol. JD made clear that she was a virgin and did not want intercourse. However, whilst she was asleep the appellant turned her onto her stomach and raped her vaginally. They met a second time when the appellant was quite rough with her and got her to perform oral sex upon him. Not long afterwards she ended the association.

Indictment 0273 relates to the creating and obtaining of indecent images between 2007 and 2013. The scale of this was huge. The appellant had over 500 indecent images and movies of children on his mobile phone. He had filmed over 200 of them himself. There were five category 5 images, 217 category 4 videos and five extreme videos. Two of the videos were entitled "Little Hands". They involved a 2-year-old child masturbating the appellant. That child has been identified and her mother has been charged.

In addition, the appellant had a collection of indecent images saved onto his laptop. There were 150 images of categories 1 to 3, 218 category 4 images and 11 category 5 images together with four images of extreme pornography. There were also many images of adult females pretending to be children and movies about fathers sexually involved with their children.

After the appellant's arrest he was bailed. He then bought a new mobile phone and sent text messages to another male in which they discussed their own historical abuse. They planned a meeting at which the pair could abuse that male's daughters by pretending that the appellant was a cousin. The appellant also shared indecent images with third parties. The appellant was not cooperative with the police. He declined to identify the children in the images and movies found on his phone and laptop. He declined also to identify any of the third parties he had communicated with or shared images with. We have seen personal statements from some of the victims or their parents. Unsurprisingly, very serious harm has been done.

The appellant is now 49. He has not previously been convicted.

In passing sentence the judge observed that in her view the case was exceptional. This was offending over a 12 year period against nine children. In the cases where guilty pleas had been tendered the evidence was overwhelming on the majority of the counts. No doubt the judge was referring to the fact that there was material on the mobile phones which indicated what had taken place.

The appellant's actions had caused great misery and long-lasting harm. His own daughter had been abused for years for his sexual satisfaction. Her childhood was blighted and he had controlled her by fear. The breach of trust in that daughter's case had also featured in relation to LJ, the daughter of his brother. That brother himself had thought that he was close to the appellant and there was a serious breach of trust in relation to the brother as well. That family's life had been turned upside down. Again, the appellant's control over LJ was overwhelming.

The judge referred to the shocking video of the appellant being masturbated by a 2-year-old child where he had declined to assist the police. He had groomed four teenagers whom he had targeted through the Internet. He had exploited them to satisfy his sexual lust. They were all vulnerable girls for one reason or another. In addition there were images made by him and recovered from various mobile phones and a laptop. The appellant had no less than six Internet profiles on different dating sites.

The judge found the appellant to be a clever, confident and manipulative sexual predator who was prepared to adopt a high risk strategy to achieve his goals. The judge rejected expressions of remorse. She said that the appellant was a cynical manipulator of the court process who sought to evade or reduce his culpability. She described him as a selfish and self-serving man. His offending and his culpability was high. It had caused extreme harm and had been life changing for the complainants. The dangerousness provisions of the 2003 Act applied to him.

All of those assessments and the judge's condemnatory remarks in sentencing appear to us to be entirely justified. The judge's view as to dangerousness was confirmed by the pre-sentence report.

We deal first with the renewed application relating to conviction. It is contended that convictions in relation to the appellant's daughter on trial 1 are rendered unsafe by the wrongful admission of certain bad character evidence. The issue is a relatively narrow one. There is no complaint about the admission of some bad character evidence, namely the appellant's guilty pleas in relation to LS, aged about 10 at the relevant time and guilty pleas relating to LJ aged 8 to 11, JK aged 15 and JD aged 14. In addition the detail of some of the appellant's activity with JD, including a sound recording whereby he asked her to call him "daddy" whilst engaging in sexual activity was admitted as was the nature of the videos the appellant had himself made involving a number of the complainants.

Having admitted those matters in evidence at the outset of the trial the judge reserved the question of admissibility in relation to two contested matters until after SJ had been cross-examined. Defence counsel objected to the admission of reference to the discovery of the video showing the appellant being masturbated by a 2-year-old child (the "Little Hands" video). He also objected to a number of other video films found in the appellant's possession showing an interest in the sexual abuse and rape of children aged as young as 4.

The judge admitted the evidence under section 101(1)(d) of the 2003 Act. The evidence was admitted as relevant to a propensity on the part of the appellant to commit offences of type alleged by SJ with the particular focus on the tender age at which the abuse of SJ had begun. The submission made to us is that a propensity to involve girls who were younger than LJ, whose abuse was admitted, was of limited importance in the context of SJ's allegations.

We remind ourselves that LJ had been raped between the ages of 8 and 11. It was submitted that the truly important matter in issue as far as SJ was concerned was whether the offences had happened at all. In addition, it was submitted that information about the "Little Hands" and other videos was unduly prejudicial particularly where a significant amount of other bad character evidence had been admitted. It was argued that the admission of those videos or rather the information about them finally tipped the scales of prejudice against the appellant so that the trial became unfair. Moreover, it was urged that the judge in summing-up did not sufficiently warn the jury against prejudice arising from feelings of revulsion.

We are not persuaded that these submissions are properly arguable and we refuse leave. The judge did give the jury a clear warning about putting aside emotions aroused which we think was sufficient in the circumstances. We are satisfied that in a case where the abuse of the daughter occurred on her own account when she was 4 and certainly when she was no older than 6, that the evidence referred to was material when the appellant's case was that SJ's allegations were fabricated. It was capable of demonstrating a propensity and interest in the abuse of children of tender years which was highly relevant to the issues in the case concerning SJ.

The jury of course did not see the videos. A brief reference in neutral terms to their content and the age of the children involved was made. As far as the 2-year-old was concerned she was only referred to as "a much younger child than [LJ]".

The judge had been extremely careful in her approach to the issue of propensity and had postponed her ruling on those issues until a point in the case at which she could be better informed. We agree with the observations of the Single Judge that the trial judge was entitled to conclude that this bad character evidence was admissible and that she had adopted a careful and correct approach to the matter. The renewed application is therefore dismissed.

We next turn to the appeal against sentence. It is submitted that notwithstanding the very grave nature of the offences and their numerous aggravating features the judge made insufficient allowance for the principle of totality so that the custodial element of the sentence passed was manifestly excessive.

Counsel's written submissions drew attention to the Sentencing Council's Definitive Guideline on rape which provides:

Whilst acknowledging that that allows for upward adjustment for aggravating features, he submitted that the sentence was nonetheless too long.

Counsel also drew attention to the decisions of this Court in R v P(P) [2009] EWCA Crim 1048 and R v Watkins [2014] EWCA Crim 1677. He argued that sentences of the duration passed in this case should be reserved for what he submitted were the very worse cases of this type exemplified by P(P) and Watkins. Reference was made to what counsel described as established authority, accompanied by the argument that the term imposed here was out of line with them. Those cases included R v Coles [2010] EWCA Crim 320, R v TS [2012] EWCA Crim 745 and Bernard H [2012] EWHC 1521.

As far as those three cases are concerned it is to be noted that none of those is a guideline case and that the result in each was fact specific. Our attention has also been drawn to the decision in Coleman, part of this court's decision in R v Burinskas & Ors [2014] EWCA Crim 334.

We note that the Sentencing Council's guideline on sexual offences applies with effect from 1st April 2014. The date of sentencing in this case was 11th February 2014, so that the predecessor guidelines, namely those of the Sentencing Guidelines Council apply to this case.

As far as offences of rape are concerned, for repeated rape of the same victim over a course of time, or rape involving multiple victims the starting point is 15 years with a range of 13 to 19 years.

In P(P), a case where a life sentence was imposed, this court indicated that a 33 year notional determinate term would have been appropriate after a trial. That case involved serial rape and other sexual abuse of two daughters from the age of about 8 through to their early 30s. The case was aggravated by significant violence, causing serious physical injury, regular pregnancies, the isolation of the victims and the blighting of their lives.

In Coles an IPP was imposed and the court held that a notional determinate term after trial of 20 years was appropriate. There, five girls had been subjected rape and sexual abuse over an 8 year period. They had been corrupted. The court described the case as "dreadful but not of the utmost gravity". In that case the girls were aged between 11 and 15, thus rather older than some of the victims in this case.

Watkins was a case which the court said "plumbed the depths of depravity". On a very late guilty plea a 29 year custodial term was upheld as part of an extended sentence. The case involved gross sexual assaults, not far short of rape of two infants each aged just over 1 year. The time frame involved was relatively short, about 5 months in one case and 2 months in other. Whilst the extreme youth of the children rightly led to a finding of depravity, it seems to us that they were at an age when mercifully, unlike the victims in the present cases, they would have been unaware of what was being done to them.

The case of Coleman, at paragraph 115 of Burinskas, involved countless rapes of a stepdaughter over a 10 year period, between the ages of 5 and 16, where the custodial term of an extended sentence was reduced to 27 years prior to credit for a guilty plea. That was a case which involved use of significant violence including the hospitalisation of the victim. About 2 years of the 27 years was attributable to indecent images offences. There, of course, there was but a single victim.

All of those cases were decided whilst the Sentencing Guidelines Council's guidelines were in force. Particular reliance is placed by Mr Binder on P(P) and Watkins as representing cases at the extreme end of the spectrum of offending with the concomitant submission that this case, bad as it is, falls short of them.

It seems to us that care needs to be taken in relying on phrases such as "the depths of depravity" as if that established a particular category of offence. There will in any given case be a number of factors to be taken into account. A case may reach the level of the utmost seriousness by a variety of routes and the attaching of labels is not a particularly good guide. What is required is a careful assessment of the facts.

Reverting to the relevant guideline, we begin by noting that this is not only a case of repeated rape of the same victim, which would lead to a starting point of 15 years, but it is one of repeated rapes of more than one victim together with rape of a further victim and a large number of other serious sexual offences committed against young girls. The rapes of two of the victims, SJ and LJ, started when they were well below the age of 13, namely at 5 or 6 and at 8 respectively.

We note that Lord Thomas CJ observed at paragraph 183 of Coleman that given the very prolonged period of time over which the offences continued, a period similar to that in the present case, the custodial period must be "well above the sentencing range in the first bracket of the rape guideline". That was said in the context of a case where there was a single victim and where the court held that a custodial term of at least 25 years was appropriate.

In the present case there are no less than nine separate victims who are capable of being identified. That is clearly relevant in considering the harm done by this offending. Quite apart from the harm inherent in serious offending of this sort against young victims, it will be seen from the recitation of the history that there are multiple aggravating features involving breaches of trust, recording of the offending, threats to victims, deceit, grooming and controlling, the suborning of SJ's sisters to give false evidence at trial, the appellant's isolation of SJ within the family and the exploitation of the vulnerable.

The structuring of the sentencing shows that for the offences against SJ the judge imposed 17 years, 12 years consecutive in relation to LJ, reflecting 20% credit for guilty plea, and 4 years consecutive in relation to JD, again reflecting 20% credit for guilty plea in her case. The judge was entitled to pass consecutive sentences reflecting offending against different individuals. None of the sentences imposed in relation to any of those individuals seems to us to be open to criticism and no such criticism has been advanced. Indeed in the light of Coleman, a longer sentence might have been justified in the case of SJ had it stood alone.

It is clear from the sentencing remarks that the judge was acutely conscious of the need to recognise principles of totality and proportionality. That is why she passed a series of concurrent sentences in relation to the victims LS, DC, AF, JK and BP as well as in relation to the serious indecent images offences. The question for us is whether nonetheless the result is one which was disproportionately long and manifestly excessive. The duration and scale of the offending here was particularly substantial. Whilst the features which make it such a very serious case may not be as eye catching as those in Watkins, or as extreme as those in P(P) these offences approach a comparable level of gravity for different reasons.

After careful reflection, however, we have come to the conclusion that this sentence was too long overall in relation to the custodial term. Grave as this offending was, it can properly be said that the violence used in the case of SJ was not of the order found for example in P(P) and Coleman. Nor were there elements of sadism, nor did pregnancy or sexually transmitted disease enter the picture. Although the judge was very conscious of the need to step back and consider totality, we are ultimately persuaded that she did not make sufficient allowance for this factor in a very difficult case.

We give effect to our conclusion by reducing the overall custodial term to one of 30 years. That will be achieved by reducing the sentences of 17 years on indictment 7113 to 14 years.

Before we leave this case there are two technical matters to which we must turn. Firstly, the judge reached the total custodial element of the sentence by means of the consecutive terms already identified. She then imposed a global extension period of 6 years. Whilst the judge's intention to pass an extended sentence, incorporating an extended licence period was clear, it seems to us that she was technically at fault.

While it is lawful to impose consecutive extended determinate sentences under section 226A of the 2003 Act, the court should always make it clear as to which offences those sentences are being attributed as it is the overall extended determinate sentences that must be consecutive and not just the custodial terms. We have considered R v Pinnell and Joyce [2010] EWCA Crim 2848, at paragraph 48 and R v Francis and Lawrence [2014] EWCA Crim 631, at paragraphs 50-57.

In order to regularise the position and to give effect to the judge's intentions, we order that 2 year extension periods be attached to each of the rape offences on counts 1 to 4 on indictment 7113 so that that becomes an extended sentence of 16 years composed of 14 years custody, with a 2 year extension period. We order a 2 year extension period to be imposed in relation to counts 1, 2, 3, 5 and 6 of indictment 7057, so that that becomes a 14 year extended sentence composed of 12 years custody and a 2 year extension period to run consecutive to indictment 7113. We further order that in relation to the rape on count 1 of indictment 7200 a 2 year extension period is attached to the 4 year term imposed, so that that becomes a 6 year extended sentence composed of 4 years custody and 2 years extension period to run consecutive to the other extended sentences. This results in an extended sentence of 36 years' duration composed of a custodial element of 30 years and a 6 year extension period.

We allow the appeal against sentence to that extent. We note that the victim surcharge order was unlawfully made and we quash it.