R v XBV

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

On 4 July 2024, in the Crown Court at Sheffield, the appellant pleaded guilty to an offence of sexual offence of a child under 13, contrary to section 7(1) of the Sexual Offences Act 2003, but not guilty to her rape. Subsequently, on 24 September 2024, the appellant pleaded guilty to rape of a child under 13, contrary to section 5 of the 2003 Act. On 25 October 2024, at the same court, His Honour Judge Slater sentenced the appellant (then aged 21) to 8 years' imprisonment, with an extended licence period of 1 year. Further, the judge imposed a restraining order, a sexual harm prevention order (a “SHPO”) and the victim surcharge. As a result of his conviction, the appellant was required to comply with the notification provisions under Part 2 of the Sexual Offences Act 2003. The appellant now appeals against sentence by leave of Bryan J.

On 27 November 2021, the appellant, who had turned 19 just days earlier, was asked to look after his 11-year-old half-sister and his 8-year-old half-brother while their parents worked. The girl had asked to go out to play but, before leaving the house, her father had told her that she must first tidy her bedroom. The appellant had been helping his sister tidy her room. After a while, she got into bed and asked him to leave. Instead, the appellant got under the covers and started to touch her. He touched and kissed her breasts and then her vaginal area, initially over her clothing but he then removed her clothes. He pulled her on top of him and kissed her chest and face. He masturbated himself while she was on top of him to the point of ejaculation. The appellant took off his own clothes and repositioned his sister so that she was on top of him but facing in the opposite direction. He then licked and kissed her vagina. He tried to push her head down towards his penis but she resisted. She tried to push him off but he kept on grabbing her back. He turned her around again and penetrated her with his penis.

The sister was in pain. She told him to stop but he kept on pushing his penis further into her. She then pushed him away and managed to climb off him. She rang her grandmother in tears to say what had happened and her parents rushed home. The police were promptly notified and the appellant was arrested.

In police interview, the appellant denied any sexual activity. Subsequently, the appellant made partial admissions to his mother but claimed that his sister had taken off her own shorts and knickers and climbed on top of him, at which he said that he had started to lick her vagina. He claimed that she then removed his trousers and lay on top of him. At that, he said that he had kissed her neck but then pushed her off. He denied penetrating her with his penis.

The sister's knickers were examined and found to have the appellant's saliva on the crotch region consistent with his having performed oral sex on her. The appellant was re-interviewed. He told the police that his sister had removed her clothes and put her vagina into his face. He said that he had started to lick her but stopped when he realised it was wrong and pushed her away. He also suggested the complainant had then removed his trousers and sat on top of him resulting in his penis being inside her vagina but he denied that he had himself put his penis inside her.

The appellant's housemate, Steven Birtles, provided statements to the police. He said that the appellant had an arrogance about him and that he used to bring women back and was going out all the time. He also reported that the appellant had admitted what he had done to his sister.

Unfortunately, the recording equipment failed and there is no transcript of the judge's sentencing remarks. The court is, however, much assisted by and grateful for counsel's agreed note of the hearing. The judge considered the guidelines issued by the Sentencing Council for offences of the rape of a child under 13. He concluded that this was a category 2A case. Category 2 because of the severe psychological harm caused by this offence, and raised culpability because the appellant had abused the trust placed in him by his father and his stepmother. The starting point for a category 2A offence is 13 years' imprisonment with a category range of 11 to 17 years.

By way of mitigation, the judge took into account the medical evidence in respect of the appellant's physical and mental health. He concluded that those circumstances, but particularly the appellant's physical ill-health, would make it more difficult for him to serve a custodial sentence. The judge indicated that the appropriate sentence after trial would have been 10 years' imprisonment. He then allowed 20 per cent credit for the late guilty plea to make the final sentence of 8 years. By law, the judge was then required to order that the appellant should, as an offender of particular concern within the meaning of section 278 of the Sentencing Act 2020, be subject to licence for a further period of one year.

Given that the offence of sexual assault of a child under 13 reflected part of the conduct encompassed in the subsequent plea to rape, the judge imposed no separate penalty for that offence.

By this appeal, the appellant argues two grounds. First, that the judge's starting point was too high in all the circumstances of the case such that the sentence was manifestly excessive. Secondly, that prohibition 6 of the SHPO was unnecessary, disproportionate and insufficiently clear.

Mr Hewitt, who appears for the appellant before us but did not appear in the court below, rightly makes no complaint about the 20 per cent credit afforded to the appellant for his guilty plea. He argues, however, that the judge was wrong to find severe psychological harm justifying a finding of level 2 harm. He also argues that the judge was wrong to find an abuse of trust and therefore to find raised culpability. That submission is based on the psychological evidence which, he argues, shows that the appellant's mental age was significantly lower than his chronological age at the time of the offence. He submits that the appellant was given an inappropriate level of responsibility.

Taking these submissions together, Mr Hewitt argues that the proper categorisation was a category 3B offence such that the judge should have taken a starting point of 8 years before considering the aggravating and mitigating features of the case. On that basis, he submits that the proper sentence after trial should have been 5 years and, after credit for plea, no more than 4 years' imprisonment.

The judge heard harrowing victim personal statements from both the sister and her father. The father described a very significant change in his previously happy and outgoing daughter. She had become distant and quiet. She was afraid and regularly suffered nightmares in which she relived this offence. She had become afraid to leave the house and socially withdrawn.

In her own statement, the girl also described her difficulty in sleeping. She said that she was constantly tearful, anxious and scared. She had struggled to concentrate in school and feared that her education had been affected. She had self-harmed repeatedly and lost her appetite. She had struggled socially with other children in school.

The Sentencing Guideline for offences of the rape of children under 13 gives further guidance in respect of when the court might find severe psychological harm:

On the issue of culpability, Mr Hewitt relies heavily on the psychological report by Dr Harry Wood. Dr Wood interviewed the appellant and administered a battery of psychological tests. He reported that the appellant had missed out on a lot of school and the associated social opportunities by reason of his chronic kidney disease. He found that the appellant did not present as intellectually impaired but that full scale IQ testing had put him in the bottom 3 per cent of the general population. He had failed his GCSEs. The appellant complained of feelings of rejection by his parents and by his stepmother, although it has to be borne in mind that the interview was conducted after his family had reported him to the police for the rape of his stepsister.

Dr Wood concluded that the appellant was emotionally immature and that he had limitations with social skills and with understanding interpersonal boundaries. Dr Wood reported that the appellant had a mental age of 12½ at the time of his examination when in fact he was 2 months shy of his 22nd birthday. It is that conclusion that is put front and centre of the submissions on this appeal. Dr Wood himself acknowledged that the appropriateness of such estimates of mental age is controversial among psychologists.

This was not, however, the only evidence that the judge had before him. First, even within Dr Wood's report, one must balance the expert's age assessment with the evidence that the appellant was a sexually active young man who understood the need for consent and that it was wrong to engage in sexual activity with a child. Indeed, Dr Wood does not suggest that the appellant did not know that what he was doing was wrong. Further, even after pleading guilty to this offence, the appellant continued to minimise his own criminality, dishonestly maintaining to Dr Wood that his stepsister had initiated the sexual activity.

Secondly, one of the people who knew the appellant best would have been his own father. It is important to observe that he and his partner had sufficient confidence in the appellant to leave him in charge of his younger half siblings. While that is not a complete answer to the argument that it was inappropriate to repose trust and confidence in the appellant by reason of his intellectual and emotional immaturity and we are cautious about the inevitable circularity of suggesting otherwise, that evidence does tend to suggest that those who knew the appellant best did not regard him as only functioning at the level of a 12-year-old boy. Indeed, this had been a long-standing arrangement that had not apparently given rise to any previous concerns. Thirdly, there was the evidence of Mr Birtles. Further, Mr Birtles' description of arrogance is reflected in a teacher's view, quoted by Dr Wood, that as a boy the appellant was controlling and arrogant. Fourthly, the appellant maintained his dishonest attempt to blame his victim for her own rape in his interview with the Probation Service for his pre-sentence report. Importantly he accepted, however, that his own actions were wrong and that he should not have behaved as he did.

Taking all of the evidence in the round, we conclude that the judge was entitled to find that, while emotionally immature and intellectually limited, the appellant fully understood that it was wrong to engage in sexual activity with an 11-year-old girl and that sexual activity must always be consensual. Whatever his limitations, he therefore knew his conduct was unlawful and wrong. Indeed, we conclude that is why the appellant lied and sought to deflect responsibility for his actions. Accordingly, the judge was entitled to reject the argument that it had been inappropriate to have expected the 19-year-old appellant to have taken care of his step-siblings while their parents were at work. The judge did not therefore err in finding that this case involved a breach of trust.

Having reached that conclusion, we are struck by the deeply unattractive way in which the appellant has variously put his case. First, he falsely tried to blame his stepsister - even after pleading guilty to rape - for initiating or encouraging sexual activity when in fact she was from start to finish an innocent victim in what happened. Secondly, he falsely sought to blame the girl's parents for leaving him in charge. In our view, the judge was right to find him solely responsible for his actions.

Accordingly, we conclude that the judge was right to treat this very serious offence as a category 2A rape of a child under 13, and to take a starting point of 13 years' imprisonment. The note of the sentencing remarks is not of course a transcript of everything that was said and does not capture the aggravating features identified by the judge or all of the mitigating factors that were available to this appellant. We consider that there were serious aggravating features of this offence. First, it was a sustained sexual offence that the girl estimated lasted for some 30 minutes. As well as penetrating his sister's vagina with his penis, the appellant performed oral sex on her and attempted to force her to perform oral sex on him. Secondly, this was unprotected penetrative sex. Thirdly, the appellant ejaculated. Fourthly, the offence was committed in his sister's own bed; the place in the world where she should have been safest. Fifthly, although there is no suggestion that the brother witnessed what happened and was thereby psychologically damaged, the offence was nevertheless committed when the appellant and his sister were alone in the house with an 8-year-old child.

In our view, these serious aggravating features of the case warranted a significant upward adjustment from the starting point, although the judge was then of course required to reflect the mitigating factors. It is here that the judge rightly took into account the appellant's undoubted and serious physical health condition and his emotional immaturity and intellectual limitations as mitigating features of the case. As already related the appellant suffers from chronic kidney failure. He is dependent on dialysis three times a week. As the judge observed, a prison sentence will be more difficult for this appellant than for many.

We accept that age should never be seen mechanistically as a chronological number but rather the real question is to consider the developmental and emotional age of an offender. Some further allowance was therefore appropriate to reflect the fact that this appellant was an emotionally immature 19-year-old man. Further, the appellant had no previous convictions and there was some delay in this prosecution, albeit such delay was not exceptional following the pandemic.

Taking into account the proper starting point of 13 years' imprisonment and the many serious aggravating features of this case, we consider that the judge made generous allowance for the mitigation by reducing the sentence below the category range to 10 years' imprisonment after trial. Accordingly, we reject the argument that the judge adopted a starting point that was too high and the overarching submission that a sentence of 8 years' imprisonment after credit for the late guilty plea was manifestly excessive.

By the SHPO, the judge made conventional orders to prevent unsupervised contact with girls. Paragraph 6 of the order then required that the appellant should not:

The use of polygraph testing to monitor the risk of serious harm is not new. Section 28 of the Offender Management Act 2007 provides that the Secretary of State may include a polygraph condition in the licence for certain offenders who have been convicted of sexual, terrorist or domestic abuse offences. By section 29, such condition requires the offender to participate in polygraph sessions with a view to monitoring the offender's compliance with the other conditions of his licence or improving the way in which he is managed upon release. Section 30 provides that any evidence of statements made by an offender while participating in a polygraph session or of his physiological reactions during such examination are not admissible in any criminal proceedings against that person.

Equally, paragraph 10ZA of Schedule 1 to the Terrorism Prevention and Investigation Measures Act 2011 provides that an order made under that Act may include a like requirement. Again, the 2011 Act expressly provides that evidence obtained from such examination is not admissible in criminal proceedings against that person.

The Sentencing Act 2020 does not expressly provide for the inclusion of a polygraph requirement in an SHPO. In R v David [2023] EWCA Crim 1561, this court considered requirements in an SHPO that an offender should comply with any instruction by his offender manager or the police requiring him to attend a polygraph or integrity screening, and that he should participate in such test or screening as instructed. The judgment of the court was given by Bryan J, who was also the Single Judge in this appeal. The court did not decide that a requirement for polygraph testing could never be included in a SHPO but that the requirement in that case was neither necessary nor clear, and that it was both disproportionate and oppressive. Bryan J particularly highlighted the failure to comply with section 347A of the Act.

Section 343(1A) provides:

Here, the prosecution simply uploaded a draft order to the Digital Case System. There was no evidence put before the court from a police officer that complied with section 347A(2) and accordingly the judge should have refused to include the polygraph requirement in this SHPO. Further and in any event, we do not consider that a requirement that allowed any police officer responsible for the appellant's management to require him to undertake a polygraph on any subject whatever and without any limit of time could possibly be necessary. The requirement is also vague, in that it purports to apply long after the appellant might have a police officer responsible for his management. In our judgment, the very breadth of the requirement was both oppressive and disproportionate.

This was also a positive requirement and therefore subject to section 347A. Again, there was no evidence from the offender manager to support this requirement. In any event, we consider that the requirement was vague in that it failed to identify what sort of relationship must be reported and at what stage after meeting a person the obligation is said to arise. Again the requirement is unlimited in time, and apparently will apply long after the appellant has an offender manager allocated to his case. Such a vague, wide-ranging and unlimited requirement was not necessary. Further, its imposition and the attendant risk of criminal liability for its breach were oppressive and disproportionate.

In our judgment, paragraph 6 should not have been included in this SHPO. To that limited extent, we allow this appeal against sentence and order that paragraph 6 should be deleted from the order.