R v Richard Andrew Taylor

This is a hearing of an application for leave to appeal against sentence which was referred to the Full Court by the Registrar because of issues relating to the structure of the sentence imposed under section 278 of the Sentencing Act 2020, and we are very grateful to Mr Benthall and Mr Potts for their submissions. Mr Benthall raises two distinct grounds of appeal against sentence in addition to the point recognised by the Registrar.

On 25 June 2024, in the Crown Court at Ipswich, following a trial before HHJ Martyn Levett and a jury, the applicant (who was then aged 56) was convicted of a number of sexual offences against two complainants (who we will refer to as "C1" and "C2") who have the benefit of life-long anonymity pursuant to the provisions of the Sexual Offences (Amendment) Act 1992. No evidence was offered on a number of different counts and a further count was ordered to lie on the file.

On 28 September 2024, so some 3 months later and before the same judge, the applicant was sentenced to a total of 20 years and a 2-year licence period and it was the calculation of that which has given rise to the issues identified by the Registrar. We will return to that when dealing with the merits of the application for permission to appeal.

So far as the relevant facts are concerned, the offences took place between 1999 and 2003. The two complainants (C1 and C2) were brothers. The applicant was a friend and colleague of their stepfather. There were domestic difficulties between the stepfather and their mother. At the relevant time C1 was aged between 12 and 15, so under 16 and C2 was aged between 10 and 12, so under 13.

The applicant would be invited to the family home for drinks and dinner. The friendship developed and the children spent time with the applicant and sometimes went on trips with him. The children liked the applicant and C1 was keen to see horses to which the applicant had access. There came a time when the applicant, according to C1 and C2, asked if they could stay overnight with him at his home. At trial that was an issue but the jury must have been sure that C1 and C2 were giving truthful accounts. Their mother asked where they would sleep and the applicant replied that he had a bedroom with two single beds and a foldaway bed.

C1 said that the applicant had been visiting the family for about a year when he first stayed, that he was shown to the spare room, and then shown to the applicant's bedroom. He sat on the bed and he remembered the first incident taking place when there were touching of penises and masturbation leading to ejaculation. That was repeated on a number of occasions over the period of the indictment and the first of the subsequent occasions occurred at some point during the next few days. The behaviour progressed. The applicant performed oral sex on the complainant and encouraged him to reciprocate. C1 said that these trips would occur quite frequently and sometimes his brother C2 was around. Their sister came on one of the trips and they slept in the spare room and C1 shared a bed with the applicant.

Sexual activity became the norm. There then was occasioned a time when C1 was encouraged to penetrate the applicant's anus with his penis and there was a time when C1's anus was penetrated by the applicant. C2 and the sister were present during that time but downstairs playing a video game and C1 remembered being naked from the waist down outside the bathroom. There were other instances of anal sex that occurred and overtime C1’s trips to the applicant's home became less frequent and anal intercourse came to an end. C1 had begun a relationship with a woman and the applicant said they should no longer engage in anal sex because of that.

The offending came to light in around 2016 when C1 spoke to his mother and disclosed some of what had happened. At the same time C2 reported that he had been subject to abuse by the applicant and C2 had spoken to his partner about that who spoke to the mother about those concerns. In the end matters were reported to the police and it came to trial.

So far as C2's account was concerned, he mentioned how the applicant would sit around naked in the house. He remembered being touched and talked to in an encouraging way. He remembered sharing baths with the applicant. C2 thought that he had only been at the applicant's home on perhaps two occasions. He remembered the abuse beginning at a younger age than his brother and it began with the applicant performing oral sex on him and then encouraging C2 to perform oral sex on the applicant. He recalled at least one other instance of this conduct and on one occasion C2 was in bed with the applicant and the applicant encouraged him (C2) to penetrate the applicant's anus with his fingers, which was count 19, which is relevant to the grounds of appeal.

The judge had before him a pre-sentence report in which it was apparent that the applicant continued to deny the offending and victim personal statements which it is not necessary to repeat in court but we have read and taken into account.

So far as the structure of the sentence was concerned, counts 1 to 10 concerned C1 and count 15 to 19 concerned C2. The counts in relation to C2 were made consecutive to the counts in relation to C1.

The judge's sentences were as follows:

The problem under section 278 of the Sentencing Act and the structure of those sentences, is that count 10, which is concurrent to all the other counts, overlaps with the extended period in count 6. It is common ground that the sentence will need restructuring, but in a way which does not increase the sentence, subject to our decision in relation to the other grounds.

So far as C2 was concerned the judge sentenced:

We turn therefore first to deal with the grounds of appeal which were first set out in a very helpful written advice prepared by Mr Benthall. The grounds are that the judge was wrong to make count 19 in relation to C2 consecutive to counts 15, 16, 18 and 17, not on the basis of the Sentencing Act but on the basis that it led to a sentence which was manifestly excessive and failed to take account of all but the relevant features and in particular, the differences of offending against C1 and against C2. The second ground of appeal was there was insufficient account taken of good character.

Mr Potts submitted that the trial judge was the sentencing judge best placed to make the assessment of a fair and proportionate sentence and subject to the points under the Sentencing Act 2020, the sentence was not wrong in principle nor manifestly excessive.

We turn first of all to deal with the issue of good character. The offence specific guideline for rape, but which mirrors other sexual offences refers to mitigating factors, positive character and/or exemplary conduct. There is then a starred part. The starred part says:

The second point is whether the overall sentence was simply too long because count 19 had been made consecutive. So far as the complaint is made in relation to the difference of offending between C1 and C2, it is right to acknowledge that the offending against C1 took place over a period and was more extensive than the offending against C2. The judge's task was to arrive at an overall sentence which was just and proportionate and to recognise the immense harm caused both to C1 and C2 through their lives. Further, as Mr Potts rightly identifies, that if one updates count 19 to and has measured regard to the current Sentencing Guideline in relation to inciting child sexual activity with a child under 13, there would be a starting point of 8 years and a range of 5 to 10 years. The judge's consecutive sentence of 5 years in those circumstances making it consecutive to the earlier sentences which in aggregate were 4 years with the 1 year extended licence did not lead to a manifestly excessive sentence.

That brings us back to the issue of the Sentencing Act 2020, and we grant leave to appeal against sentence because it is apparent that the judge had fallen into error in the structure of the sentences. Section 278 requires special custodial sentences for offenders of particular concern. This is the appropriate custodial term, and a further period of 1 year for when the offender is to be subject to a licence. In order to give effect to the judge's sentence of 20 years with a 2 year licence period, which for the reasons we have already indicated we consider to be just and proportionate, we will, first of all, adjust the sentence on count 10 and reduce it from a determinate sentence of 11 years down to a determinate sentence of 10 years. We will make that the first determinate sentence, so that all the other sentences of counts 1 to 12 are concurrent with it, save for count 6 which was a custodial sentence of 4 years' custodial sentence with a 1 year extended licence period, and we will quash the sentence on that and replace it with a 1-year custodial term and a 1-year extended licence which we make consecutive to count 10. So that means that for complainant 1 the sentence remains at 11 years' imprisonment plus a 1-year extended licence, and we can confirm that the amended sentence on count 6 is appropriate, having regard to issues of totality and structure.

So far as counts 15 to 19 are concerned and C2, we will take as the lead determinate sentence count 19, which is a determinate sentence of 5 years' imprisonment. We will make counts 15 and 17 concurrent to that. That leaves then counts 16 and 18 to be made consecutive to count 19, which is the custodial sentence of 4 years and the extended licence of 1 year. To that extent the appeal succeeds.

We should not leave this appeal against sentence without remarking on information which was provided to us by Mr Benthall, which shows that Mr Taylor has made exceptional progress in prison and has assisted and continues to assist many others in prison. Those matters occurred after the relevant sentence, and have not made the sentence either wrong in principle or manifestly excessive. We are very grateful for the assistance which we have received.