R v IAG

This case concerns the sentencing of an offender for sexual offences against his young daughter, to whom we shall refer as "V". V is entitled to the lifelong protection of the provisions of the Sexual Offences (Amendment) Act 1992. Accordingly, during her lifetime no matter may be included in any publication if it is likely to lead members of the public to identify her as the victim of these offences. Naming the offender would obviously undermine that statutory protection. We have therefore directed that for listing purposes, and in any report of this case, his name must be anonymised by using the randomly chosen letters, IAG. We shall refer to him as “the offender”.

The offender stood trial in the Crown Court at Wood Green, before Her Honour Judge Greenberg KC and a jury, on an indictment which charged a total of ten offences against V. Count 1, sexual assault of a child under 13, contrary to section 7(1) of the Sexual Offences Act 2003; count 2, a further section 7 offence; and count 3, assault of a child under penetration, contrary to section 6(1) of the Sexual Offences Act 2003, all related to a single occasion in November 2019, when V was approaching her seventh birthday. The jury convicted the offender of those offences, but were unable to agree verdicts on the other counts, which were ultimately ordered to lie on the file.

On each of counts 1 to 3 the offender was sentenced to a two year community order, with a rehabilitation activity requirement for up to 30 days. In addition, a Sexual Harm Prevention Order and a Restraining Order were made.

His Majesty's Solicitor General believes the total sentence to be unduly lenient. Application is accordingly made, pursuant to section 36 of the Criminal Justice Act 1988, for leave to refer the case to this court so that the sentencing may be reviewed.

For present purposes a very brief summary of the facts is sufficient. The offender is now aged 45. He had no previous convictions. For a number of years he has suffered from mental health problems – a matter to which we will return shortly. He and his wife (V's mother) separated when V was aged about 4. V thereafter continued to have regular contact with her father.

On an occasion in November 2019, the offender was permitted to take V to a church. Whilst there, he became angry with V and took her into a bathroom. He removed her trousers and underwear, sat her on his lap and began to touch and rub her inner thighs (count 1) and her chest area (count 2). He then briefly penetrated her vagina with a finger or fingers (count 3). V contacted her mother who came to collect her. The mother found V trembling and looking very frightened. However, it was not until May 2024 that V disclosed the sexual offences which had been committed. She expressed the view that her father had been unwell at the time of the offending.

The offender was arrested later in May 2024. At that time he was about to be discharged from a period of inpatient treatment in hospital, pursuant to section 2 of the Mental Health Act 1983.

The offender pleaded not guilty to all the charges against him. He has always denied committing any sexual offences against V. He maintains that denial, notwithstanding his convictions.

Following the trial, sentence was adjourned to allow time for reports to be prepared. Those representing the offender obtained and served a report from a consultant psychiatrist, Dr Bose. The judge was also assisted by a pre-sentence report.

The sentencing process involved a number of complications. We need not mention all of them.

At the sentencing hearing on 31 March 2025 the judge was aware that count 3 attracted the provisions of section 278 of the Sentencing Code, which relates to the special custodial sentence for offenders of particular concern. On that occasion she imposed on count 3 a sentence of two years' imprisonment, suspended for two years, with a rehabilitation activity requirement for up to 30 days. On each of counts 1 and 2 she imposed concurrent suspended sentences of 12 months' imprisonment. We shall return shortly to her reasons for doing so.

Unfortunately, no one at that stage had invited the judge's attention to case law concerning the suspension of a custodial sentence when section 278 applies. The subsequent realisation of that oversight led to a "slip rule" hearing on 7 May 2025, at which the judge varied the sentences to concurrent community orders on each of the three counts for two years, again with the rehabilitation activity requirement for up to 30 days. She made clear that it remained her view, for the reasons she had previously given, that an immediate custodial sentence was inappropriate on the particular facts of this case.

There was a further attempt to invite variation of sentence at a hearing on 2 June 2025. The judge rightly pointed out that that hearing was taking place more than 56 days after she had passed sentence and she therefore had no power to vary the sentence under section 385 of the Sentencing Code.

With reference to section 208(11) of the Sentencing Code, she expressed the view that the time which the offender had spent remanded in custody amounted to an exceptional circumstance which would have made it unjust to add to the community orders a further requirement for the purpose of punishment.

In her detailed sentencing remarks given on 31 March 2025, the judge referred to the offender's history of mental ill-health and noted that it included periods of inpatient treatment in hospital for about a month in June or July 2018, again in October 2018, and again in November 2019 (a few days after the offences).

The judge further noted statements in which V's mother had made observations about what may have been the impact on V of the offences. V's mother said that since August 2023 she had noticed that V stammered on occasions. She further reported that since making her disclosure about her father's behaviour, V had displayed tics; had been receiving therapy; had expressed fears that as the daughter of someone with mental illness, she too may be mentally ill; and had recently begun to self-harm. The judge summarised the mother's evidence as describing:

The judge explained that all three offences were part of the same incident, count 3 being the most serious offence, and that concurrent sentences were appropriate. She considered the Sentencing Council's definitive guideline relevant to the count 3 offence. In light of the mother's evidence, she assessed the harm to be in category 3.

As to culpability, the judge said this:

The starting point for a category 3A offence is six years' custody, with a range of four to nine years. The judge further noted that the offender had spent a total of about seven and a half months on remand in custody. She did not find him to be a dangerous offender, as that term is defined for sentencing purposes.

The judge then turned to the expert evidence of Dr Bose. He stated that the offender had a well established diagnosis of schizoaffective disorder, manic type, which meant that there were elements of both schizophrenia and bipolar affective disorder. Dr Bose commented that one of the recognised symptoms of manic episodes is a propensity to engage in acts which have serious long-term consequences. This can include "risky sexual behaviour where the consequences of the actions are not taken into account". Dr Bose had further opined that the period during which the offences took place coincided with a severe manic episode which had led to sexual inhibition and the assault.

The offender had been admitted to hospital, as we have said, shortly after the offences, and he remained there until sometime in December 2019.

The judge noted, but did not accept, Dr Bose's view that it was likely that the offender had not intentionally assaulted V. No such argument had been advanced on the offender's behalf at trial, and on the basis of the jury's verdicts the judge was satisfied that the conduct charged in counts 1 to 3 was intentional. The judge did, however, accept and agree with Dr Bose's evidence that the offender was psychotic and was suffering with a severe psychotic and manic episode at the time of the offences. The judge stated that she was satisfied that

Dr Bose had reported that the offender now knew that he had been mentally ill at the relevant time, was now taking his medication regularly, and was currently well treated and not showing any psychotic symptoms. Dr Bose therefore felt that the offender did not need a hospital disposal. Dr Bose had suggested that the appropriate disposal was a probation order with a condition of mental treatment. However, the judge noted from the pre-sentence report that, in practical terms, a mental health treatment requirement would not be available for the offender.

The judge expressed her conclusion in these terms:

The judge did not accept the view expressed by V's mother that the offender was using his mental illness as an excuse. The judge observed that the mental illness was an explanation, and one which was supported by the opinion of Dr Bose.

The judge said that a lengthy prison sentence would punish the offender for offences committed when he was mentally very unwell, and would satisfy a desire for vengeance; but it would not avoid the risk of further relapses in the offender's mental health after his release. She said:

When she later varied those sentences at the hearing on 7 May 2025, the judge observed that in the event of any breach of the community orders, the offender could be sentenced to any sentence the court thought proper.

For the Solicitor General, Miss Hole submits that the sentencing was unduly lenient because the judge failed to pass a total sentence which reflected the overall criminality.

No challenge is made to the judge's categorisation of count 3 under the sentencing guideline. It is accepted that the judge was entitled to move downwards to some degree from the guideline starting point to reflect the facts of the offending, and was then entitled to make a further reduction to reflect the impact on culpability of the offender's mental disorder. But, Miss Hole submits, the judge made too great a reduction in each of those respects. She further submits that in the circumstances of this case, proper application of the Imposition guideline should have led the judge to conclude that appropriate punishment could only be achieved by immediate imprisonment.

As to the first of those broad submissions, Miss Hole accepts that the judge was entitled to conclude that there was good evidence that the offender had a well-established diagnosis of schizoaffective disorder, manic type; that he had been unwell at the time of the offence; that at the time of the offending V's mother had herself been sufficiently concerned to call an ambulance and the Crisis Team; and that the offender was hospitalised very soon afterwards, being acutely psychotic and acutely unwell.

With reference to paragraph 15 of the Sentencing Council's guideline on Sentencing offenders with mental disorders, which suggests a sequence of questions which a judge might ask when considering whether a defendant's culpability was reduced by mental disorder, Miss Hole further accepts that the judge was entitled to answer those questions in the affirmative. There was evidence that the offender's disorder impaired his ability to exercise appropriate judgment and to make rational choices, and that his disorder caused him to behave in a disinhibited way. Moreover, Miss Hole concedes, in our view realistically, that even when an offence falls within the provisions of section 278 of the Sentencing Code, as the offence charged in count 3 did, a non-custodial sentence may on rare occasions properly be passed. But in all the circumstances of this case, she submits, the reductions which the judge made had the result that the sentence of two years' imprisonment, which she initially had in mind, was only half of the very bottom of the category 3A sentencing range. In the circumstances, she argues, the reductions made were "simply too much".

As to the second of her broad submissions, Miss Hole points out that there was no suggestion of a hospital order under section 37 of the Mental Health Act 1983, and that the author of the pre-sentence report had not felt able to support a community order with a mental health treatment requirement. The author of the pre-sentence report had further stated that a community order with a rehabilitation activity requirement was one which should not be considered to be a direct equivalent of a mental health treatment requirement: it is generally aimed at offenders with fewer mental health needs than those of this offender.

Miss Hole further submits that if a custodial sentence had been imposed, as she argues it should have been, the effect of section 236A of the Sentencing Code would have been to extend the licence period for one year, and that such support as was available under the rehabilitation activity requirement could have been provided pursuant to licence conditions.

For the offender, Mr Trigg submits that the judge had had the advantage of hearing all of the evidence at trial, including that of the offender himself. He submits that the evidence clearly showed the offender to have been mentally unwell at the time of the offences. The judge, he suggests, was constrained by various restrictions on her sentencing powers, none of which reflected any fault on the part of the offender.

Mr Trigg's primary submission is that the judge properly took into account the evidence as to the offender's culpability and was entitled to conclude that his culpability was substantially reduced, though not extinguished, due to his mental ill-health at the time of committing the offences. In those circumstances, he submits, the judge was entitled to sentence in a way which was substantially different from the course which would no doubt have been adopted had the offender not been mentally ill.

We are grateful to both counsel for their written and oral submissions.

The judge was faced with a difficult sentencing process. She confronted that difficulty, and was commendably clear in her explanation of how she had done so. It is evident from her sentencing remarks that she did not underestimate either the seriousness of the offending or the effect on V. It is, however, in our view equally clear that she was correct to accept the unchallenged expert evidence of Dr Bose as to the nature and consequences of the offender's mental disorder. In the light of that evidence, the judge cannot be criticised for finding that the mental disorder greatly reduced the offender's culpability, and that it is unlikely that he would have committed the offences if he had not been mentally unwell.

We accept Mr Trigg's submissions as to the importance of the fact that the judge had heard all the evidence at trial and, in particular, had had the opportunity to see, hear and assess the offender when he was giving evidence. She clearly took into account the evidence that the offender has some insight into his mental condition and that at the time of sentencing he was complying with his regime of medication. We think it also important that she had in mind the significant period of time which the offender had spent in custody on remand, and we would add to that the fact that the offender had also spent about seven weeks subject to an electronically monitored curfew.

In those circumstances, the judge was entitled to conclude that the appropriate course was not merely to reduce the length of the term of imprisonment which would be imposed on an offender of full culpability, but rather to impose a different type of sentence. She justifiably assessed the community order as carrying a better prospect of rehabilitation than would a lengthy sentence of imprisonment, whilst preserving the powers of the court to sentence in a different way in the event of any breach of the order. We are unable to accept the submission that those conclusions were not properly open to her.

For those reasons we hold that the sentencing, though lenient, was not unduly so. The submissions which Miss Hole has made on behalf of the Solicitor General have raised important points which merited the attention of the court. We therefore grant leave to refer, but we refuse the application.

The effect of our decision, from the offender's point of view, is that his total sentence remains as imposed on 31 March 2025.

We add two final points. First, we are pleased to read in a pre-appeal report prepared on 20 May 2025 for the assistance of this court, that the offender was assessed as engaging well in his rehabilitation activity requirement sessions and was beginning to apply the strategies which he was learning.

Secondly, in view of the failure of counsel to cite appropriate authority to the judge in this case, we think it appropriate to remind judges and practitioners of the decision of this court in R v John (Ben) [2022] EWCA Crim 54; [2022] 1 WLR 2625. The power to suspend a special custodial sentence under section 278 of the Sentencing Code will only arise if the appropriate custodial term does not exceed 12 months, and that fact, coupled with the practical complications which would arise from the implementation and possible later breach of a special custodial sentence which had been suspended, mean that it will only be in exceptional circumstances that it would be appropriate to suspend a special custodial sentence.

Miss Hole, I am going to add a direction that by 4 pm next Tuesday 15 July, the prosecution must either notify the Registrar that no application will be made to remove from the file counts 4 to 10; or, alternatively, make such application with full reasons. Initial consideration of any such application is reserved to me as Vice-President.

MR TRIGG: My Lord, may I raise one matter? In the Registrar's cover sheet there was a reference to the surcharge and a request that that be clarified.

LORD JUSTICE HOLROYDE: You are quite right.

MR TRIGG: The surcharge was recorded as being in the sum of £187. The Registrar has pointed out that the surcharge should in fact have been £85 because of the date of the offending.

LORD JUSTICE HOLROYDE: Thank you very much indeed for reminding me, Mr Trigg. Miss Hole, I cannot imagine you will want to say anything about that?

MISS HOLE: No, thank you very much, my Lord.

LORD JUSTICE HOLROYDE: We are grateful to the Registrar for bringing this to our attention. It appears that the Crown Court record misstated the amount of the appropriate surcharge. The record must be corrected to show a surcharge of £85.