R v ECC

This is the hearing of a renewed application for leave to appeal against sentence following refusal by the single judge. We are very grateful to Miss Jones, who has appeared pro bono, for her helpful written and oral submissions.

The applicant is aged 34. She was, before this offending, of good character. On 23 July 2023, on the second day of her trial in the Crown Court at St Albans, she pleaded guilty to an offence of cruelty to a person under 16, contrary to section 1(1) of the Children and Young Persons Act 1933. The judge said that he gave the applicant credit of between 15 and 20 per cent (although in fact he gave 20 per cent) because of the presence of other matters on the indictment which were not, in the event, pursued.

A trial took place on unrelated matters in respect of which the applicant was acquitted. The judge said that the evidence in that trial showed that the applicant indulged in fantasies about sexual child abuse. Messages were exchanged with the applicant's co-defendant and others in relation to sexual child abuse. The judge stopped the trial because he could not be sure that the messages were not just fantasies, although he returned to that point when he came to assess dangerousness.

On 5 September 2024, the applicant was sentenced to an extended determinate sentence, pursuant to section 279 of the Sentencing Act 2020, comprising a custodial term of six years and an extended licence period of three years.

No victim surcharge was ordered because the earliest date of the offending was May 2011.

The victim of the applicant's offending has the benefit of lifelong anonymity, pursuant to the provisions of the Sexual Offences (Amendment) Act 1992. In order to protect the victim's identity, it has been necessary to anonymise the name of the applicant and to give only a short summary of the facts, to avoid the risk of inadvertent identification of the victim. To that extent, the applicant has an undeserved windfall of anonymity.

The relevant facts are that the applicant and her co-defendant met when they were teenagers and formed a relationship. The victim was born when they were both 17. The co-defendant was the victim's father.

The co-defendant started to sexually abuse the victim, both with digital penetration of her vagina and performing oral sex on her. This was when she was aged between 3 and 5 years. Thereafter, the victim was raped regularly. On occasions that occurred in the presence of the applicant. Rapes took place outdoors and on one occasion another man raped her in the presence of the co-defendant.

The police were alerted when messages about the availability of a 22 year old woman and her 4 year old daughter for sex were posted by the co-defendant.

The victim was placed into the care of her grandmother while police investigated. The victim made no disclosures and she was returned to the applicant who entered into an agreement with Social Services not to have the co-defendant live in the same household. That agreement was breached almost immediately. The co-defendant returned to abuse the victim.

When she was aged 5 the victim approached a classmate and asked him to have sex with her, which she considered to be normal behaviour and which came to the attention of the school. The victim, not surprisingly, also displayed sexualised behaviour.

The victim was removed from the care of the applicant and placed in foster care. She was then placed with her grandmother. That placement broke down because of the victim’s challenging behaviours, damaged as she was because of the offending.

A man was arrested in November 2022 and his WhatsApp chats with the co-defendant about the rape of an 8 year old girl were discovered. In January 2023 the applicant and the co-defendant were arrested. The applicant made no admissions in interview.

The applicant was charged with child cruelty on the basis that she was aware that the victim had been raped and sexually assaulted by the co-defendant on no less than five separate occasions, but did nothing to protect the victim. The victim had reported bleeding from her vagina to the applicant when she was first raped by the co-defendant.

The judge was sure, based on information provided in the victim personal statement, that the applicant had been able to stand up to the co-defendant when her property (a coat) was slashed by him with a knife. On the other hand, she had not stood up to protect the victim.

The judge found that, at times, the applicant was subjected to domestic violence, but was also sure, from her conversations with third parties, that the applicant had an interest in the sexual abuse of children.

The victim made a personal statement in which she disclosed that she had been self-harming for a considerable period of time, and indeed was doing so around the time of the trial.

The judge took into account the offence specific guideline. He noted that at the material time the maximum sentence for the offending was ten years' custody, and not 14 years to which it had been increased. The judge found that it was culpability A offending because there were multiple category B factors, including prolonged and multiple incidents of serious cruelty and neglect. There was a deliberate disregard for the welfare of the victim and a failure to take steps to prevent the victim from harm. There was one culpability D factor, namely that the applicant was the victim of domestic violence, although the judge did not accept that the applicant was coerced by the co-defendant.

The judge found that the offending was category 1 harm because of serious psychological and emotional harm caused to the victim. The judge found the offending to be category 1A, but noted that there should be a downward adjustment to reflect the culpability D factor. The starting point under the guidelines for category 1A offending was a starting point of nine years' custody, with a range of seven to 12 years. However, that was in respect of a higher maximum of 14 years and not ten years' imprisonment.

The judge found that the aggravating factors were the extreme youth of the victim, a failure to respond to warnings, and indeed a breach of the agreement in allowing the co-defendant to return home.

The judge found the mitigating factors to be the applicant's age, the age of the offence, the applicant's mental health and the domestic violence to which she had been subjected, although the judge had reflected that earlier in choosing where in the range to place this matter. The judge concluded that the aggravating factors and the mitigating factors balanced each other out.

The judge therefore imposed a sentence before discount for the guilty plea of seven years and five months' imprisonment which, with the 20 per cent discount, gave a sentence of six years' imprisonment. The judge found that the applicant was dangerous and imposed a three year extended licence period.

Three proposed grounds of appeal are advanced on the renewed application. First, it is said that the sentence of six years' imprisonment was manifestly excessive because the judge had placed the offending into the wrong and higher category; secondly, that insufficient adjustment was made to reflect personal mitigation; and thirdly, that the finding of dangerousness was wrong because the judge had taken into account information contained in an indictment on which the applicant had been acquitted.

So far as the first point is concerned, in oral submissions this morning Miss Jones drew attention to the fact that the judge had referred to the information from the victim personal statement about the applicant being able to stand up to the co-defendant on occasions. That was only part of the picture and, in our judgment, the trial judge was entitled to place the applicant's offending into high culpability because of a combination of culpability B factors of prolonged and/or multiple incidents of serious cruelty, including serious neglect, the deliberate disregard for the welfare of the victim, as is apparent from the facts, and a failure to take any steps to protect the victim from offences in which the above factors were present. The judge had also rightly noted that there was one lesser culpability factor, which was that the applicant was a victim of domestic abuse. The judge did not find any other lesser culpability D factor. Although Miss Jones addressed us on that, in our judgment, the judge, who had heard the trial (albeit only up to a submission of no case to answer involving the applicant) was the person best able to make those sort of assessments. We can see no failure in finding that this was category 1A offending.

So far as the complaint about insufficient adjustment for personal mitigation, there were numerous aggravating factors which would have taken this sentence very substantially up within the range. The judge found that the personal mitigation balanced that out. It is apparent that the judge must have reflected all that mitigation to have considered that the mitigation was balanced out the aggravating factors. In our judgment, the judge was entitled to find that the mitigation did not reduce the sentence beyond what must have been a sentence of seven years and five months, before considering aggravating and mitigating factors and discount for plea.

That leaves the issue of dangerousness. It is common ground that the court may take account of any information before it. What was submitted was that, first, there was insufficient regard to the passage of time because the offending took place ten years ago. It is however apparent that it continued over a very long period of time. In our judgment, the judge was not prevented from making a finding of dangerousness because of the passage of time.

The second complaint was that the judge had taken into account the sexualised conversations about sexual child abuse which were attributed to the applicant, it being the applicant's case at the trial where the judge upheld the submission of no case to answer, that she was not responsible for the messages. However, the judge fairly dealt with the question of these messages. It does not appear that there was any contest before the judge on sentencing that the applicant was responsible for the messages. There was no request for a Newton hearing. Having regard to all of the circumstances of the offending, the judge, who had been the trial judge in another trial concerning the applicant (albeit only up to a submission of no case to answer), was best placed to make the assessment dangerousness. It was not, in our judgment, a particularly surprising assessment in the light of the facts which we have outlined.

Accordingly, notwithstanding the skill with which the renewed application has been pursued before us this morning, we refuse the renewed application for leave to appeal against sentence.