R v VPT

The provisions of the Sexual Offences (Amendment) Act 1992 apply to this appeal. Accordingly, no matter relating to each of the victims of these offences shall, during that person's lifetime, be included in any publication if it is likely to lead members of the public to identify that person as the victim of that offence. Given the family connection between the appellant and his victims, this appeal has therefore been listed under the cipher "VPT", and neither the appellant nor the victims will be named in this judgment.

On 6 March 2025, in the Crown Court at Warwick, the appellant pleaded guilty on re-arraignment to five offences of indecent assault on male persons, contrary to section 15(1) of the Sexual Offences Act 1956. On 22 April 2025, at the same court, Mr Recorder Michael Duck KC sentenced the appellant to a total of 21 months' imprisonment. Such sentence was made up as follows: 2 months' imprisonment on count 2, in respect of an offence committed against the appellant's younger nephew; 12 months' imprisonment on each of counts 4, 6 and 10, in respect of offences committed against the slightly older nephew; and 19 months' imprisonment on count 8, which was a further indecent assault against the older nephew. The judge ordered the sentences on counts 4, 6, 8 and 10 to run concurrently with each other but consecutively to the sentence passed on count 2, making a total sentence of 21 months' imprisonment. Further, the judge made a restraining order for a period of 5 years and recorded the fact that the appellant was required to comply with the notification provisions under Part 2 of the Sexual Offences Act 2003 for a period of 10 years.

The appellant now appeals against sentence with leave of the Single Judge.

These offences were committed in the 1970s, some five decades before the sentencing hearing. The appellant, who is now 66, was himself a teenage boy at that time. From 1974 to 1976, the appellant regularly stayed with his older sister and her husband. When staying with his sister, the appellant shared a bedroom with his nephew. When they were alone in the bedroom the appellant got into the boy's bed with him. He would ask for a hug and, when the younger boy refused, the appellant pulled his nephew's body on top of his own. He then moved his hips up and down and gyrated his hips, rubbing his body against that of the younger boy. Both boys were clothed at the time of these offences and the nephew did not know whether the appellant had ejaculated. This was a regular occurrence whenever the appellant stayed in his nephew's bedroom. Count 2 was a specimen count that reflected this course of offending.

The judge sentenced the appellant on the basis that these offences had been committed over about a year, and that he was 14 at the time that the offences started. By that calculation, the nephew was 7.

Counts 4, 6, 8 and 10 reflect the appellant's further offending against an older nephew. The appellant stayed at the home of the second boy when he was studying at college in 1974/5. Over a period, the appellant shared a bedroom with this boy and his brother. The appellant frequently followed him up to his bedroom after school when the parents were out and the grandfather was in charge of the children. It also sometimes happened when the appellant was supposed to be looking after his nephew because his parents were away. The appellant pushed his nephew onto the bed, sometimes face down, and put his hands on his penis and bottom. He would then stroke the boy whilst also stroking himself. The appellant would then leave and go to the bathroom. On occasions, the appellant pushed his nephew back down onto his back, and got on top of him, touching his penis and buttocks with his hands. The touching progressed from over to under the boy's clothing after about 2 months. The touching of his nephew's penis under his pants would take the form of gentle rubbing and extended to his testicles and buttocks. The touching of the buttocks involved the appellant grabbing them with both hands and pulling the other boy as tightly as he could towards him. The assaults lasted between 5 and 10 minutes. The appellant told his nephew that he had to keep quiet about the abuse because he feared how his father would deal with it and that, if he said anything to anybody, he would just blame it on him. The appellant told him that he would be the cause of the family being ripped apart if he disclosed what had happened.

The judge sentenced the appellant on the basis that he had indecently assaulted this nephew in each way charged on 10 occasions and that he had been 15 at the time that these offences began. By that calculation, this nephew was around 11.

In their victim personal statements, the two nephews described how they had been affected by these offences five decades ago. Both men have issues with trusting others and have suffered with their mental health and their self-esteem. Both men have needed counselling and harboured misplaced feelings of their own guilt. One talks of self-harm, and has had persistent suicidal ideation. When he was in his mid-20s, the younger nephew asked to meet the appellant for a drink. He asked him why he had done the things that he did as it had “messed up” his life. The appellant simply laughed the question off which made the nephew feel that he was being mocked.

When eventually questioned by the police about these matters, the appellant declined to answer any questions in his police interviews. Although the appellant initially pleaded not guilty to all charges, his lawyers indicated he would plead guilty on a factual basis that was subsequently accepted within a couple of months of the plea and case management hearing.

The judge decided that the appropriate credit for the late guilty pleas in this case was therefore 20 per cent. No complaint can or is made about that level of credit.

Accordingly, the judge was required to sentence a man now in his mid-60s for serious sexual offences committed when he himself was a teenager over 50 years ago, and who has not committed any further offences as an adult. This was a complex sentencing hearing. Arriving at a just sentence in this case requires consideration of no fewer than six different guidelines issued by the Sentencing Council:

The judge navigated all of these issues. He referred to the case of R v Ahmed [2023] EWCA Crim 281, in which Lord Burnett CJ stressed that in such cases, and whatever the offender's age at the time of conviction, the court must apply the guidelines on Sentencing Children and Young People and that the sentence should ordinarily be limited to the maximum sentence that would have been available at the time when sentencing someone of the offender's then age.

Accordingly, the judge identified that when the appellant had been 14, as he had been at the earliest point charged in count 2, he could not have been sentenced to Borstal training and that the maximum sentence then available was a 3-month detention centre order.

Turning then to the offence specific guidelines, the modern equivalent of the offences on this indictment was sexual assault of a child under 13, an offence that carries a maximum of 14 years' imprisonment compared with the maximum of 10 years available for the indicted offences under the 1956 Act. The judge treated each offence as a category B2 offence within the current guidelines, which indicate a starting point of 2 years' imprisonment with a category range of 1 to 4 years. The judge treated count 8 as the most serious offence since it alleged touching the older nephew's penis under his clothing. Count 4 alleged touching the boy's penis over his clothing while counts 6 and 10 reflected touching the boy's backside over and under his clothing respectively. The judge said that the offending was aggravated by the fact that there were multiple offences against two victims over a significant period of time. Further, the appellant had taken advantage of the position in which he had been placed and had sought to persuade his victims not to report the offences.

The judge identified four mitigating factors. First, the guilty pleas. While of course reflected separately by credit for plea, the judge observed that this factor was particularly significant since it prevented the victims from having to give evidence at trial. Secondly, he stressed the appellant's otherwise good character and the fact that he had led a very industrious and productive life. He described him as a devoted family man and grandfather, and took into account the positive character references before the court. Thirdly, he took account of the appellant's health problems. Fourthly, he accepted that the appellant had himself been abused as a younger boy but observed, as indeed the appellant had volunteered in his written basis of plea, that his own experiences should have given him greater insight into the damage that he was inflicting upon his own nephews.

The judge took count 8 as the lead offence against the older nephew and identified the appropriate sentence after trial to be 2 years' imprisonment which, after credit for the late guilty plea, was reduced to 19 months. The judge imposed concurrent sentences of 12 months' imprisonment on each of counts 4, 6 and 10. The judge then imposed a short consecutive sentence of imprisonment on count 2, to reflect the fact that there was a second victim. The sentence after trial would have been 3 months' imprisonment but the judge reduced that to 2 months after credit for the guilty plea. Rightly, no criticism is made of the fact that this sentence was ordered to run consecutively. Accordingly, the total sentence imposed was 21 months’ imprisonment. The judge said that the offending, albeit committed five decades ago, was so serious that it justified immediate imprisonment.

By this appeal, Clare Evans, who appears for the appellant as she did below, argues that the judge erred in law by taking the maximum sentences available to him as the starting point for each offence. Further, she argues that the final sentence was manifestly excessive in all the circumstances.

We did not understand the first argument that the judge had taken the maximum sentence available to him. As already explained, the maximum sentence in law was 10 years' imprisonment, although following the guidelines and this court's decision in Ahmed, the court should not ordinarily sentence in excess of the sentence that could have been imposed on the appellant at the time. That was a sentence of 2 years’ Borstal training that, at least when early release used to be at the halfway mark, was regarded as equivalent to 4 years' detention in Ahmed. On reflection, Ms Evans accepted this point in her oral submissions.

The only other sentence imposed which was the maximum available in the 1970s was the 3 months, reduced to 2 on his plea, for count 2. That, however, was reached by taking a starting point of 2 years' imprisonment. While one would expect a very significant reduction in such sentence to reflect the fact that the appellant was 14 at the time of that offence, we consider that that factor was amply achieved by the sentence of 3 months after trial.

It is true that the judge's sentence, after trial, on count 8 was set at the adult starting point for a category B2 offence under the modern guidelines. That would not have been appropriate for a single offence committed by a teenage boy 50 years ago. But that is not this case and the sentence had to reflect the serious and sustained nature of this offending. On the appellant's own admission, this was one of a substantial number of offences against the older boy, about half of which involved touching under the boy's clothing.

In our judgment, the judge carefully navigated his way through the complexity of this difficult case. The resulting sentence of 21 months' imprisonment for this catalogue of offending was within the range of sentences properly open to the judge and was not manifestly excessive.

Although not argued, we have given consideration to whether the judge should have suspended this sentence. The guidelines give particular guidance as to when a custodial sentence imposed for sexual offences committed by a child or young person should be suspended. Here there were no penetrative offences, but the judge was entitled, in our judgment, to conclude that the overall seriousness of these repeated offences against two different victims committed over a long period of time could only properly be dealt with by a sentence of immediate imprisonment.

Accordingly, this appeal against sentence is dismissed.

Before leaving the case, we pay tribute not just to the handling of this difficult case by the judge but also to Matthew Barnes (prosecuting counsel in the Crown Court) for the quality of his very helpful sentencing note. It is precisely the sort of assistance that a judge sitting in a busy Crown Court needs from the Bar.