R v ICG

Reporting restrictions apply in this case. Pursuant to the provisions of the Sexual Offences (Amendment) Act 1992, no matter may be included in any publication during the victim's lifetime if it is likely to lead members of the public to identify her as the victim of these offences. We will refer to the victim as the complainant throughout this judgment.

On 22 September 2023, following a trial in the Crown Court at Chester before Mr Recorder Rankin and a jury, the appellant (then aged 65) was convicted of counts 9 (sexual assault) and 12 (possession of indecent photographs of the offences referred to below). He was acquitted of counts 1 (assault of a child under 13 by penetration), 8 (rape) and 10 and 11 (assault by penetration).

On 28 November 2024, following a retrial before His Honour Judge Thompson and a jury, the appellant (then aged 66) was convicted of counts 2, 3, 4, 5 and 6 (sexual activity with a child) and 7 (attempted rape). He was sentenced to a total of 16 years' imprisonment, against which he appeals with the leave of the single judge.

The complainant was born in 2003. When she was aged 2 or 3 her mother struck up a relationship with the appellant. The appellant did not live with them on a permanent basis until the complainant was aged 13 or 14, but he was always around and stayed over a lot. Such was the closeness of their relationship that the complainant called the appellant "dad". The appellant sexually abused the complainant over a three year period between 2016 and 2019, when she was aged between 13 and 16. As the judge said, this was an opportunity to guide her, to protect her and to shape her future like many stepfathers do. Instead, the appellant used his role as a trusted step parent to be alone with her and to abuse her sexually. He groomed her to the point when she felt guilty when she resisted the appellant's abuse.

We shall now summarise the offences of which the appellant was convicted.

When the complainant was aged 13, she developed tonsilitis. She asked her mother to help her in the bath and her mother asked the appellant to do so. The complainant was not keen on this idea and insisted that she could do it herself. The appellant persisted and the complainant gave in. When she got out the bath she became ill and passed out. When she came round she found the appellant penetrating her vagina with his finger. The appellant only stopped when the complainant's brother knocked on the door wanting to use the toilet. The complainant did not tell anyone what had happened and just took herself to bed.

On the complainant's 15^th birthday she had a party at which she became very drunk. She went up to bed. The appellant came in at about 4 am and told her that her boyfriend had been cheating on her. The complainant and the appellant had an argument about this. Eventually the complainant got into bed. The appellant got in next to her. He was wearing just his boxer shorts. He started to kiss her neck. He told her that he loved her and that it was so unfair. He touched her breasts. The complainant screamed for him to get off. Her mother came upstairs to ask what was going on. The appellant told her that the complainant had had a nightmare and that he had just been checking on her.

On New Year's Eve of that same year the complainant (aged 15) became drunk again. Her mother again asked the appellant to bathe her. The complainant fell asleep in the bath and the appellant got her out and laid her on the floor. When she came to, the appellant was penetrating her with a vibrator (count 4). He then penetrated her with his fingers (count 5) and licked her vagina (count 6). He asked her if anyone had ever done that to her before, and when she said no, he replied that he was glad to be her first. He then took his penis out of his trousers. The complainant tried to move but the appellant kept pulling her back into position. He started to pull down his trousers and underpants, but then one of the complainant's brothers went into his room. The appellant stopped, concerned that the brother would overhear what was happening in the bathroom (count 7 attempted rape).

When the complainant was aged 16, she had her school prom. She came back from that party and went to sleep. She woke up to the appellant kissing her and trying to take off her knickers. She punched him in the face and scratched him with her false nails. She felt bad about doing that and apologised to him. He went off in a huff and did not speak to her for three days.

The police seized items of technology from those involved and analysed them. The appellant had a folder on his laptop called "Booboo" which was a name that he had for the complainant. In that folder were a number of recordings from a camera that the appellant had placed in the complainant's bedroom. He kept videos which showed the complainant in a state of undress. The appellant was unable to explain why these had been saved in the "Booboo" folder on his laptop. Count 12 related to him having indecent images of a child, which were six videos of the complainant undressing. The appellant said that any videos that he had of the complainant were for the legitimate purpose of helping her with her night terrors.

Text messages showed a number of disturbing exchanges between them, such as the appellant asking the complainant for a sexy picture every day, expressing disappointment that she was still wearing knickers in a picture that she sent him and saying that he felt like a jealous boyfriend rather than a father.

The complainant made a victim impact statement. She spoke of physical, sexual and mental abuse affecting her lack of self-confidence about her body in a profound way. It has led to her suffering depression, anxiety and post traumatic stress disorder. She wrote a suicide note at the age of 16. Her isolation was made greater because her mother stood by the appellant. She has a hard time trusting any man in any context and she is fearful when she is by herself at night. She says that she has to battle every day to keep herself alive, but that she has grown as a person and keeps fighting.

We recognise the very serious consequences that these offences have had on the childhood and life of the complainant. We pay tribute to her and how she has (in her own words), despite everything, managed to grow as a person and to keep fighting.

The appellant never admitted any of his wrongdoing and hence there were two trials without any guilty pleas. The author of the pre-sentence report stated:

Whilst the appellant does not stand to be sentenced additionally for having pleaded not guilty, it does evidence a total absence of remorse for his actions. Accordingly, there is no mitigation in this regard.

The appellant was aged 66 years at the time of sentence. He was of previous good character. He was diagnosed at the time of sentence as having "mild cognitive impairment as a result of cerebrovascular disease or early Lewy body disease”. The judge took this into account as mitigation.

The appellant was sentenced to a total of 16 years' imprisonment. It comprised nine years' imprisonment on count 7, with concurrent sentences of five years' imprisonment on each of counts 4 and 5, and three years' imprisonment on count 6. In respect of count 2, he was sentenced to six years' imprisonment, which was ordered to run consecutively to the other sentences. On count 3 he was sentenced to six months' imprisonment which was ordered to run consecutively. On count 9 he was sentenced to six months' imprisonment, which was ordered to run consecutively. On count 12 he was sentenced to three months' imprisonment, which was ordered to run concurrently.

The submissions made by Miss Larton on behalf of the appellant fall into three, comprising the following: ground 1, that the sentence of nine years' imprisonment imposed on count 7 (attempted rape) was manifestly excessive because there was no rape, the acts were brief and went only a little way beyond being merely preparatory; ground 2, that the sentence of six years' imprisonment imposed on count 2 was manifestly excessive because there was no violence or threat to the victim and the abuse of trust must not be double counted; and ground 3, that the overall sentence of 16 years' imprisonment was too high and failed to take into account adequately the totality principle.

We have concluded that the sentence was not manifestly excessive. We take on board the fact that an attempted rape might comprise a lesser sentence than an actual rape. The judge took into account in the instant case the following matters. The sentence was not only for the attempted rape (count 7), but also for other counts, namely, counts 4, 5 and 6, involving different forms of penetration which were dealt with by concurrent sentences. Contrary to what was submitted, there was some force in that the complainant tried to move, but the appellant kept pulling her back into position. The reason why the rape did not occur is not because of any voluntary cessation of activity or remorse on the part of the appellant; it was because the appellant heard the sound of the complainant's brother in the next room and was concerned that he would overhear the noise from the bathroom. In the context of everything else which occurred in the bathroom, the rape would have ensued but for the arrival of the brother next door. The offence of attempted rape was aggravated by the fact that it took place in the complainant's home. It was in the context of the actions comprised in counts 4 to 6. It was part of a course of conduct of the other offences. It has had a very serious and lasting effect upon the complainant.

The starting point for the full offence of rape is ten years' imprisonment, with a range of nine to 13 years, with a range of nine to 13 years. It fell into category 2 due to the severe psychological harm which was caused; and an aggravating factor was the abuse of trust (culpability A). No issue is taken with that categorisation.

The judge sentenced the appellant to nine years' imprisonment (the bottom of the range). Whilst the sentence could be reduced from this to take into account the fact that it was an attempt, the following factors indicate that a sentence of nine years' imprisonment was not manifestly excessive, namely:

Here, too, we have concluded that the sentence was not manifestly excessive. In respect of count 2, the starting point was five years' imprisonment, with a category range of four to ten years. That is based on penetration of the complainant's vagina by the appellant using his finger – harm category 1; and the abuse of trust, specifically the targeting of a particularly vulnerable child and a disparity in age – culpability A.

Miss Larton accepts the categorisation. She submits that there is nothing that requires an increase from the starting point of five years, and therefore there should be a movement back to the starting point.

We do not agree. The judge was entitled to take account of the young age of the complainant (13 years) as a significant aggravating feature. Another aggravating factor is that the complainant needed help because she was unwell with tonsilitis. As set out earlier in this judgment, she became ill as she came out of the bath and passed out. It was then in respect of a particularly vulnerable child that the appellant inserted his finger into her vagina. Whilst that did not involve a threat or the use of violence, the combination of those matters justified both the 1A categorisation and going above the starting point to the extent that the judge did.

The judge was entitled to impose consecutive sentences in relation to separate offences. In particular, the offences for which there were sentence of six years and nine years' imprisonment respectively were separated in time by about two years. Further, there were other offences on other occasions, separate from those offences, thereby justifying the further consecutive sentences of six months each. A decision to have made these sentences concurrent because they were sexual offences committed by the appellant against the same complainant would not have reflected the overall level of criminality.

The judge had in mind the principle of totality. This was reflected in part by the imposition of concurrent sentences in respect of counts 4, 5, 6 and 12 with the sentence on count 7. The judge expressly took into account totality in respect of count 3. The sentence imposed on count 3 was six months' imprisonment, which was the starting point for category 3, and culpability A (abuse of trust, specific targeting of a vulnerable child, and significant disparity in age).

In the circumstances of count 3 and the facts as related above, the sentence could have been in the upper part of the range, from a higher level community order to three years' imprisonment.

The judge also expressly took into account totality in respect of the sexual assault (count 9), where the sentence imposed was six months' imprisonment. It could have been longer. The starting point was two years' imprisonment. The judge could have sentenced in the upper part of the range of one to four years.

From the abusive and gross nature of the facts summarised in respect of counts 3 and 9 above, the grave nature of the offending is readily apparent. The references to totality by the judge were not formulaic, but they were real adjustments to the sentences in order that the overall sentence would be just and proportionate. But for the principle of totality, the sentences in respect of counts 3 and 9 in particular would have been longer.

The judge did not expressly say that, taking into account the principle of totality, an overall sentence of 16 years' imprisonment was appropriate, but it is apparent from the sentencing remarks that the judge had that well in mind. In our judgment, so serious was the offending and so bad were the consequences on the complainant that a long sentence of imprisonment was justified.

The judge had regard to the medical evidence in respect of the appellant and took into account his age, his poor health, and such mitigation (albeit limited) as there was.

The overall sentence of 16 years' imprisonment was not manifestly excessive, bearing in mind the nature of the offending and the very severe consequences to the childhood and life of the complainant.

The sentencing judge was the judge who had presided over the second trial. He was in a particularly good position to determine the appropriate sentence. He was able to reflect the level of the appellant's criminality and its effect on the complainant. That was all brought to bear in the sentencing exercise in which the judge properly reflected the principle of totality in the different way set out above.

Looking at the sentence as a whole, it was not manifestly excessive and there was no error of principle. For all these reasons the appeal against sentence will be dismissed.