Emerton & Ors, R. v

The provisions of the Sexual Offences (Amendment) Act 1992 apply to these offences. No matter relating to any of the victims shall during their lifetimes be included in any publication if it is likely to lead members of the public to identify them as the victims of the offences. This prohibition applies unless waived or lifted by the Court.

On 23 January 2017 Michael Emerton pleaded guilty to 20 counts of sexual abuse involving his two biological children and his step-daughter. On 23 March 2017 he was sentenced overall to life imprisonment with a minimum term of 10 years, less days spent on remand. He appeals against sentence with the leave of the single judge. He is represented by Mr Burton QC.

On 1 September 2017 he pleaded guilty to a further ten counts involving the same children and five other perpetrators, whom he had invited to participate in the sexual abuse of them. He was subsequently sentenced overall to life imprisonment with a minimum term of 10 years, less days spent on remand to run concurrently to his previous sentence. On 29 September 2017, his Co-defendant Robert Lindsey pleaded guilty to one count of conspiring to rape a child under 13, and one of conspiring to commit sexual activity with a child under 13, one count of causing or inciting the exploitation of a child, and two offences of making indecent images of a child. He was sentenced to an extended sentence of eight years three months; the custodial element five years and three months’ imprisonment and an extended licence of three years. Thomas Perry, another Co-defendant was convicted after trial on 7 December 2017 of conspiring to rape a child under 13, one offence of conspiring to commit sexual activity with a child under 13 and one offence of engaging in sexual activity in the presence of a child. He was sentenced overall to an extended sentence of 14 years’ imprisonment, pursuant to section 226A of the Criminal Justice Act 2003, with a custodial element of 10 years’ imprisonment, and an extended licence period of four years.

The judge was HHJ Kay QC. The Solicitor General seeks leave to refer these sentences as being unduly lenient pursuant to section 36, Criminal Justice Act 1988. We grant leave.

The Solicitor General is represented by Mr Emlyn Jones. Ms Ossak represents Robert Lindsey. Ms Soerstz represents Thomas Perry. Michael Emerton seeks permission to appeal against this sentence, essentially on the same grounds as before. The Registrar has referred the application.

Matthew Webby pleaded guilty to conspiracy to rape a child under 13, conspiracy to commit sexual activity with a child under 13, sexual activity with a child and, two offences of making indecent photographs of a child. He was sentenced overall to an extended sentence of 14 years comprising a custodial element of nine years with a five year extension pursuant to s226A Criminal Justice Act 2003. He applies for permission to appeal against sentence. He is represented by Mr Clark QC. The Registrar has referred the application.

Of the three other Co-defendants, Paul Stevens was sentenced to an extended sentence of 15 years comprising a custodial term of 10 years and an extension period of 5 years, David Overall was sentenced to two years imprisonment and Simon Wintle was sentenced to 30 months imprisonment. There are no extant applications in their regard and there is therefore no need to detail their exact offending.

The facts which founded the first indictment against Michael Emerton provide the context for the offending by the Co-defendants. Briefly, Michael Emerton abused his step-daughter (A) aged 13 years, his son (B) aged 6 years and his 5 month old daughter (C) whilst their mother was at work and they were left in his sole care. There were multiple anal rapes of B, oral rapes of A and B , and they both were groomed so that, at his direction, they also performed different forms of serious sexual abuse upon each other and upon C.

On 24 November 2016, police officers executed a search warrant at his home address. The search revealed electronic devices and computers containing sexual images of A and B and graphic films recorded by the appellant while engaging in sexual abuse of them. He also shared indecent images of the children on various online forums. It was known at the time of his first sentence, as became apparent in subsequent investigations, that he planned to introduce A to individuals from various online forums who had expressed a desire to sexually abuse her.

He was arrested and in police interviews initially made partial admissions. Only when confronted with videos of the abuse and later accounts by B did he make further fuller admissions to the offences.

In sentencing, the judge described the case as involving offences of such depravity that even the most experienced judge dealing with these cases would find it truly shocking. Michael Emerton had destroyed a family. His wife believed she had a happy marriage and he was a good father. She was worried for the future mental health of her children. There were some worrying signs of the after effects upon A. Social services were sufficiently concerned that the sexual abuse of B rendered him, even at his young age, to be a risk to his siblings and other female children. Michael Emerton’s wife, A, B and C had all had to change names and move home.

Michael Emerton had put pressure on the children not to report matters. A had refused to give an account of the abuse he had perpetrated upon her. The evidence against him, so far as she was concerned, came from the images he had produced of the abuse and his own admissions.

Michael Emerton was 33 years of age with no previous convictions. It was evident to the judge and to the author of the pre-sentence report that he had not come to terms with what he had done. The author of the report described him, colloquially, as dangerous.

The judge had to consider the totality of the offending. The offences were not unique, but the judge was satisfied that they were at the extreme end of such offences against children. There was no doubt from the offending and from everything that he had read that he presented a significant risk to the public of serious harm occasioned by the commission of further specified offences for the purposes of Section 226 of the Criminal Justice Act 2003.

The judge was aware that a life sentence was a sentence of last resort. The culpability in this case was very, very high. Looking at the question of risk, he had deviated so far from the boundaries of acceptable sexual behaviour that any assessment made as to how he would behave in future could only be guesswork. Considering culpability, risk and the seriousness of the offences when taken together, this offending was so serious that a sentence of life imprisonment was required, with a minimum term of 10 years less 113 days spent on remand.

The appeal against sentence is based on the proposition that this case was not a ‘last resort case’ and that a long determinate sentence, or even extended sentence, would have been more appropriate. Alternatively, that the minimum term set was too long and failed to take account of Michael Emerton’s age, previous good character, admissions in interview and self-realisation that he was a “monster”.

The extent of Michael Emerton’s depravity and deviousness over a significant period during which his victims were so young and vulnerable, and the self-serving and self-pitying recognition of the impact of his offending made by him in interview, satisfies us that the judge correctly identified this was a ‘last resort’ case. Michael Emerton’s limited insight and attempt to minimise his culpability when interviewed for the pre-sentence report, confirms this. These factors corroborate the identified significant risk of causing serious harm to very young and vulnerable children and justified the life sentence. The principles in R v Saunders [2014] 1 Cr App R (S) 258 and AG’s Ref No 27 (Burinskas) [2014] 1 WLR 429 were appropriately observed.

The judge decided that a determinate sentence of 30 years would have been appropriate after trial to reflect the totality of Michael Emerton’s criminality. Thereafter, reducing by a third for plea, and halving the remainder to reach the nominal minimum term to be served before the Parole Board could consider him eligible for release, he reached the appropriate custodial term of 10 years. The nature and extent of the offending required it. The harm inflicted was incalculable. Culpability was high. Michael Emerton had embarked on a campaign of rape and had groomed A and B to sexually abuse others. This sentence was at the high end but was not manifestly excessive. The appeal against sentence is dismissed.

Whilst investigating the offences which formed the basis of the first indictment, police had discovered that Michael Emerton had made online contacts with other men between 2013 and 2016 to offer A and B to be sexually abused by them. The Co-defendants in the second indictment are some of them, but not every man involved has been identified.

At the time of the first sentence the judge and prosecution were aware of the continuing investigation, and the likelihood that there would be further serious charges laid against Michael Emerton. His legal advisers unsuccessfully applied to have sentencing on the first indictment adjourned pending the results of the investigation.

We do not criticise the judge for this decision. It appears to us that it would have been impossible to gauge the length of any such investigation. The gravity of the charges against Michael Emerton as already revealed established the necessity for a life sentence. There would be some sense of ‘closure’ for the wife and, consequently, A and B.

The introduction of the children to other predatory males online was facilitated by the images Michael Emerton had produced of the sexual abuse that he had committed upon, or directed the children to perform. A and B were ‘introduced’ to pornography. Michael Emerton invited men home to rape and sexually assault them and sometimes recorded the abuse. These images were ‘advertised’, as were live sessions of Michael Emerton and other men masturbating on line in the presence of naked children. On other occasions A and B were driven to a car park. On occasions they were an audience to Michael Emerton’s own sexual encounters with men he had picked up on line.

He was further indicted with conspiracies to rape a child, conspiracies to commit sexual activity with a child, conspiracies to engage in sexual activity in the presence of a child, engaging in sexual activity in the presence of a child and taking indecent images.

The obvious physical and severe psychological impact on A and B need not be detailed here but are encapsulated in a Consultant Social Worker’s expert report. In summary the future emotional welfare of the children is significantly compromised. A was so successfully indoctrinated that she refused to speak against Michael Emerton and continued to express her affection for him. Subsequently, she is devastated, and has a range of physiological symptoms directly associated with the feelings of shame and self-revulsion in allowing the abuse to continue. She has contemplated suicide. B has expressed upset and physical discomfort in describing some of the events, but has no concept of the wrong that was done to him He has “confused ideas about relationships and sexual behaviour” and is “extremely vulnerable to victimisation in the future”.

When interviewed Michael Emerton made some admissions but said he was unable to remember many of the incidents although he would not deny anything B had described.

Robert Lindsey was indicted and sentenced for two separate sets of offences. The first related to the Michael Emerton and B. He was first in time to have been in online contact with Michael Emerton and contact between them continued from August 2013 to July 2015. The second set of offences involved an otherwise unconnected teenage boy (“AM”).

B was introduced to Robert Lindsey online via a webcam. Skype chats between the adults referred to voyeurism, sexual exploitation and sexual assault. In one of their exchanges, Robert Lindsey agreed that he would anally rape B, if necessary.

Robert Lindsey visited the Emerton home. Michael Emerton commenced touching B’s penis; Robert Lindsey ‘took over’ and masturbated him whilst his father watched. The prosecution accepted that Robert Lindsey had only visited the house on one occasion and, although he had agreed that he would rape B, he did not do so.

Thereafter, Robert Lindsey made contact online with a 17 year old boy, AM. On his instructions, and in return for payment, AM sent sexually explicit images and videos of himself, showing him naked and masturbating himself.

Robert Lindsey was indicted with offences of causing or inciting the sexual exploitation of a child, making indecent images of a child, conspiracy to rape and conspiracy to commit sexual activity with A.

Michael Emerton was in frequent internet contact with Thomas Perry between May and July 2015. There is evidence that Thomas Perry had met A.

In May 2016, Thomas Perry discussed his wish to orally rape A with Michael Emerton’s assistance and asked if he could visit at the weekend to carry out this plan. When told this would not be possible, Thomas Perry proposed that they could meet in a nearby quiet village so that he could rape A.

In July 2016 similar conversations occurred between Michael Emerton and Thomas Perry over the internet. They discussed venue, restraint, blindfolding and gagging A, plying her with alcohol and their reaction to her resistance to vaginal rape.

Thomas Perry denied being participant in the relevant internet exchanges concerning A. However, he did admit knowing Michael Emerton, and he described having gone to his house for the purposes of having sexual encounters with him. He said that on one occasion B had been present. At his trial, Thomas Perry described an occasion when he had arranged to meet the Michael Emerton in a local car park for the purposes of a sexual encounter. He said that when Michael Emerton arrived, he had A with him in his car and that sexual activity had not taken place on that occasion. In another exchange between them, Michael Emerton described B performing oral sex on him and another man.

The fact that none of the offenders, Michael Emerton, Robert Lindsey, Thomas Perry or Matthew Webby had been previously convicted is irrelevant in the context of their offending and would not provide any, or any significant, mitigation. All were assessed to be at high risk or reoffending against children and to have limited insight.

In sentencing the judge said:

We do not disagree with these comments.

The judge found Robert Lindsey to be ‘dangerous’ within the meaning of the Criminal Justice Act 2003. He categorised the actual assault upon B as a 1A offence, likely to attract a starting point after trial of six years’ imprisonment. The judge accepted that the conspiracy to rape had not been implemented and that the offences in relation to AM were lower harm and lower culpability.

Thomas Perry was sentenced on 16^th February 2018 after trial presided over by the same judge. The judge disagreed that Thomas Perry had himself been groomed by Michael Emerton to contemplate the sexual abuse and rape of the children. The jury were satisfied that Thomas Perry had intended to execute the agreement to rape and that if it had taken place it was planned that:

The judge, however, accepted that the rape was not carried out, despite opportunities to do so; there was a significant difference between those who spoke about committing rape but did not carry the matter through when there must have been opportunity and those who spoke about committing rape, or other sexual activity with the children and went on to do so.

In relation to Thomas Perry’s sexual activity with Michael Emerton in the presence of B, it was plain that B’s presence was intended for Thomas Perry’s sexual gratification. It was clear that Thomas Perry had a sexual interest in children and posed a significant risk to members of the public of serious harm occasioned by the commission of further specified offences.

The Solicitor General identifies several aggravating features.

In the case of Michael Emerton the: sustained sexual abuse over several years; particularly vulnerable position of the victims; severe psychological harm caused; gross abuse of trust; location of the offences in victim’s own home; presence of other children at the time of the offending; calculating grooming behaviour; coercion to prevent the children’s disclosure; involvement of others in the commission of the offences; significant planning; and, the sexual images of the victims which were recorded, retained and shared.

In the case of Robert Lindsey that: he touched the son’s naked genitalia; victim was particularly vulnerable by virtue of extreme youth; significant planning; grooming behaviour; severe psychological harm caused; location of the offence, in the victim’s own home; acting with another to commit the offence.

In the case of Thomas Perry: particularly vulnerable position of the victims; acting together with another to commit the offence; complicity in a gross abuse of trust; contemplated the use of alcohol on the victim and the use of restraint, a blindfold and a gag; and, contribution to the severe psychological harm caused to Michael Emerton’s son.

Mr Emlyn Jones, on behalf of Solicitor General, concedes that in the case of Robert Lindsey the planned rape of Michael Emerton’s son was not carried out and that the second victim AM was 17, and a consensual participant. In the case of Thomas Perry, he makes similar concessions that the planned offences were not carried out.

Mr Emlyn Jones, submits that, the offences contained in the second indictment against Michael Emerton are so serious that the judge was wrong not to impose some additional sentence to reflect the additional offending. The harm caused to the children can only have been seriously exacerbated by their abuse at the hands of strangers invited into their home by their father, specifically to abuse them for his own sexual gratification. He submits that this increases the overall seriousness of Michael Emerton’s conduct , and that the judge failed to address the involvement of additional offenders as a specific aggravating feature as identified within the Definitive Guideline.

Additionally, as in the case of Robert Lindsey, he argues that too great a credit was afforded to Michael Emerton in respect of his guilty pleas. Michael Emerton was asked for an indication as to plea in the Magistrates’ Court and gave no indication and therefore the credit should have been 25%, not the one-third discount which was in fact applied.

Mr Emlyn Jones, submits that the judge should have sentenced Robert Lindsey in similar fashion to that of Matthew Webby in regard to conspiracy to commit sexual activity with a child, but it appeared instead the judge applied the guideline for sexual assault of a child under 13, which suggested lower sentencing range. The starting point identified by the judge, six years’ imprisonment before credit for plea, was significantly too low. Further, that the total sentence imposed should have been significantly increased to reflect the totality of the offender’s conduct. In addition to the conspiracy to engage in sexual activity with a child under 13, which was carried out, the offender conspired to rape the same victim. He also, committed offences in respect of a second victim.

Mr Emlyn Jones submits that the judge failed to sentence Thomas Perry in the context of the detailed plan to rape A. If executed, the rape would have been of the highest culpability and harm. Even despite it not being carried out, the custodial sentence of ten years represented too great a departure from the applicable starting point. In addition, the overall sentence did not reflect the commission of the offence committed against B.

We do not accept the submission that too much credit was given for plea in the case of Michael Emerton or Robert Lindsey. Whilst the Definitive Guideline Reduction in Sentence for a Guilty Plea applied in both cases, we consider the second indictment to have been complex and that the judge would have been justified in finding that there were, “particular circumstances which…made it unreasonable to expect the [respective] defendant to indicate a guilty plea sooner than was done.” (See exception F1 of the Definitive Guideline on Reduction for Guilty Plea.) The second indictment was complex, rightly subject to discussions between prosecution and defence, and did not result in pleas to all counts by Michael Emerton.

Mr Burton QC applies for leave to appeal against the sentence passed in relation to the second indictment on the same grounds as previously dismissed in relation to the first indictment. Since Mr Burton QC concedes that there are “serious aggravating features” presented by the second indictment, logically it must follow, that the application for permission to appeal is dismissed for the reasons given in dismissing the appeal against sentence above. However, Mr Burton QC deploys similar arguments to resist the Solicitor General’s application to increase the minimum custodial term.

As we indicate above, there can be no criticism in the imposition of a life sentence in this case and we do not criticise the judge for proceeding to sentence knowing that investigations continued and the broad substance of the same. The issue is essentially whether, if the offences in the two indictments had been sentenced at the same time, a greater minimum custodial term should have been imposed.

The minimum custodial term, as it stands now in relation to both indictments, is based on what would have been a determinate sentence of 30 years after trial. At the time of the first sentencing hearing, the judge referred to Michael Emerton’s displaying images of A on the internet, but had no detailed knowledge concerning the conspiracies and actual abuse subsequently unearthed. It seems to us that all aggravating features to which Mr Emlyn Jones refers, were accounted for, save that relating to the involvement of other offenders, in the first sentencing exercise. We agree that the additional factor identified by Mr Emlyn Jones is a significant aggravating feature in any circumstances, and particularly so in the present case, however, we are not satisfied that this thereby renders the exact duplication of the sentence in relation to the second indictment to be served concurrently to the sentence passed in relation to the first indictment, unduly lenient.

This was a complex sentencing exercise. The judge’s reasons not to extend the minimum term may be discerned from the explanation of the sentence he gave, namely:

Another court may have imposed a greater minimum term in relation to all offending, and we would have upheld a sentence in the region of 35 years after trial. However, applying necessary reduction and division, this would result in a term of less than 12 years. This difference of less than two years does not identify the 10-year minimum custodial term as “unduly lenient”. The life sentence manages risk, and an indication of what the notional sentence would be after trial, namely 30 years adequately reflects punishment and deterrence. We detect no gross error on the part of the judge. We do not interfere with the sentence.

Ms Ossak submits that the judge was correct in sentencing Robert Lindsey by reference to the Definitive Guideline in relation to a ‘section 7’ sexual assault of a child, rather than a ‘section 8 offence of engaging in sexual activity with a child’, regardless of charge on the indictment, by reason of the nature of behaviour involved. That is, Robert Lindsey manually masturbated B rather than fellated him. The factors identified by the Definitive Guideline as indicating the level of harm for sexual assault specifically refer to contact with naked genitalia, whereas those in relation to sexual activity with a child includes fellatio. She submits that Matthew Webby’s case was the more serious. The basis of Robert Lindsey’s plea was that he had conspired to orally rape B. However, although he had had the opportunity to do so, he had not executed the agreement. The offences involving AM were of an entirely different character and the judge was correct in dealing with them as if lesser harm and lesser culpability. The overall sentence reflecting Robert Lindsey’s criminality could be described as lenient – but was not unduly so.

We accept Mr Emlyn Jones submissions relating to Robert Lindsey. The judge was not in error in finding, on the basis of the reports that he and we have seen, that Robert Lindsey was dangerous in accordance with section 226(A) of the Criminal Justice Act 2003 and consequently imposing an extended sentence. However, we do consider he was in error in referring to what must have been a starting point after trial in relation to section 7 category 1A offending rather than section 8 category 2A offending guidelines. We conclude that the starting point after trial on the engagement in sexual activity should have been 8 years – the range was 5 to 10; there were several significant aggravating features here as indicated above. Robert Lindsey did not execute his agreement to rape B, but he did progress it to the extent to sexually assault him.

We find there is a notable disparity in the sentencing of Robert Lindsey and Matthew Webby in respect of their respective conspiracies to rape that cannot be justified based on the terms of agreement reached. We agree that the judge was right to sentence Webby to a longer sentence of imprisonment, as we indicate below, but we conclude that the judge did not adequately reflect the total criminality of Robert Lindsey nor the similarity of his offending behaviour with that of Matthew Webby. We quash the sentence in relation to Count 25 of the indictment, the ‘lead’ offence. We consider that the appropriate sentence after trial would have been 11 years. He will receive credit for plea. There will be an extended sentence of 10 years 6 months. The custodial term is one of 7 years six months. The sentences in relation to other offences will remain as before.

Ms Soerstz concedes Thomas Perry’s sentence was lenient, but not unduly so. She highlights the fact that the sentence was a 14 year extended sentence and future risk will be accommodated under the terms of such a sentence. The judge cannot be demonstrated to have fallen into error by either analysis of the facts or else by reference to the Definitive Guidelines. The conspiracy to rape was never implemented, and the judge rightly discounted the tariff that would otherwise have been applicable. Despite his extensive web chats with Emerton, the conspiracy to rape was restricted to two conversations “taking care of P’s erection” and the more serious plan to blindfold, intoxicate and abduct A.

We agree with these submissions. The overall sentence cannot be said to be unduly lenient. The agreement reached to rape A was abhorrent and clearly demonstrated the perverted thinking of both Thomas Perry and Michael Emerton and the prospective significant harm to A. However, the judge was bound to discount the sentence that would have been appropriate if the plan had been executed. He was entitled to consider the fact that the opportunity had presented itself for Thomas Perry to execute the agreement and that Michael Emerton was unlikely to have offered any resistance, but was not taken. We consider the discount he applied was not unreasonable. The sexual assault upon B was serious and aggravated, but the judge was bound to have regard to the principle of totality and to rely upon the appropriate management of risk as required by the terms of the extended sentence. The Solicitor General’s application is refused.

Matthew Webby’s offending is similar in nature to that of Robert Lindsey save that he fellated B during his sexual activity with Michael Emerton, engaged in consensual sexual activity with DC, a minor and had downloaded numerous indecent images of children,22 of them at the highest category. He seeks permission to appeal on two grounds: (i) that the judge was wrong to identify him as ‘dangerous’ and, (ii) that the sentence was, in any event, manifestly excessive.

The author of the pre-sentence report considered that Matthew Webby presented a significant risk of causing serious harm by the commission of other scheduled offences. However, Mr Clark QC argues that the judge was wrong to adopt this opinion and discount the view of Dr Joseph, an eminent psychiatrist, to the contrary. Mr Clark accepts that the reputation of the author of any report is not sufficient to withstand critical appraisal of the contents of the report in question. We consider the judge’s reasons for finding Matthew Webby to be dangerous were well articulated and supported by the facts of the offending as he found them to be, We find no error in his analysis of the same. There is no merit in this ground of appeal.

In the circumstances, there can be no criticism of the imposition of an extended sentence pursuant to section 226 A of the Criminal Justice Act 2003. The judge was not wrong to reject the submission that risk could be managed by the imposition of a significant determinative sentence and Sexual Harm Prevention Order. Matthew Webby was found to be ‘dangerous’ and present a significant risk to children. He was in denial as to his predatory paedophilic tendencies. His ability to restrain from offending during the period between arrest and conviction did not establish otherwise.

We do not accept Mr Clark’s arguments that the conspiracy to rape B should have attracted a categorisation of lower harm since the offence was inchoate and harm did not occur. This argument taken to its logical conclusion would apply to all inchoate offences. The necessary and orthodox sentencing exercise for such offence, which the judge adopted in this case, is to base a starting point on the harm and culpability of the completed offence which had been agreed between the conspirators and to make appropriate discount if, and depending in what circumstances, the conspiracy was not executed. The nature of the sexual activity with B, which had been previously agreed with Michael Emerton, is aggravated in the context of the sexual activity that was occurring with Michael Emerton at the time. The actual penetrative sexual activity, albeit consensual, with DM, an underage male, and the downloading of indecent images merits a higher sentence than that in the case of Robert Lindsey. The sentence cannot be described as manifestly excessive. The application for permission to appeal is dismissed.