R v AGP

The provisions of the Sexual Offences (Amendment) Act 1992 apply to these offences. Under those provisions, where a sexual offence has been committed against a person, no matter relating to that person 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 the offence. This prohibition applies unless waived or lifted in accordance with section 3 of the Act.

Because of the necessity to explain the relationship between the Appellant and the complainant, the name of the Appellant has been anonymised by the use of randomly chosen letters in order to prevent undermining the anonymity to which the complainant is entitled.

On 15 May 2024, in the Crown Court at Canterbury, the Appellant pleaded guilty to 14 counts of sexual activity with a child.

On 22 November 2024, the Appellant was sentenced by His Honour Judge Weekes to an extended determinate sentence of 12 years, consisting of a custodial term of 7½ years and an extended period of licence of 4½ years.

The Appellant sought leave to appeal against the sentence. He contended: first, that the custodial term was manifestly excessive as a result of errors made by the judge, including an alleged failure to make a proper allowance for the mitigation available to the Appellant; and second, that the judge had been wrong to find that the Appellant met the criteria for the imposition of an extended sentence. The single judge refused leave to appeal on the first ground, but granted leave on the second. The Appellant renews his application for leave to appeal on that first ground.

The brief facts of the offending are as follows. The Appellant resided with his long-term partner, who was the mother of the complainant. The offences occurred between 23 February 2021 and 10 February 2023, at the complainant’s home address, where the Appellant had resided since the complainant was 4 years old. The complainant was aged between 17 and 19 at the time of the offending.

The complainant reported the matter to the police and stated that the assaults consisted of the Appellant touching her breasts and the penetration of her vagina under clothing. She reported that this had occurred a couple of times a week and would occur when her mother was out or when she was alone upstairs. It first occurred in 2021, with the last occasion being February 2023. The complainant described how the Appellant would call her into her mother’s bedroom, take off her clothing, penetrate her vagina with his fingers, put his mouth over her breasts, kiss her and have vaginal sex with her. This would occur, she said, a couple of times a week. The complainant said that she would not move during the assaults and, as the Appellant was the main financial support in the house, she was scared as to what would happen if she said “no” to him.

The Appellant had no previous convictions. At the date of sentence he was 55 years of age.

At the sentencing hearing the judge had a pre-sentence report, a letter expressing remorse from the Appellant, a victim personal statement and a sentencing note from the Crown. The sentencing note did not deal with either the issue of dangerousness or an extended sentence. The prosecution did not invite the judge to consider the imposition of a Sexual Harm Prevention Order, even after a specific enquiry by the judge as to whether such an order was sought by the prosecution.

The pre-sentence report prepared on the Appellant addressed the issue of whether the author considered that the Appellant was dangerous for the purposes of determining whether an extended sentence was necessary. The author noted that the Appellant had no previous convictions, but commented that the offending had occurred over a period of time and had involved multiple incidents. The Appellant, she said, had limited insight into his offending and blamed the victim. The author’s view was that the Appellant “does not fully understand his motivation for offending and he continues to deny that he is sexually attracted to female teenagers”, but that “this is most likely a form of self preservation and is his attempt to maintain his reputation with his family members and current partner”.

The Appellant’s risk of re-offending was assessed as low, but the author commented that it was her view that “the likelihood of [the Appellant] re-offending is greater, and that external controls will be required to manage his risk in the community setting”.

In the section of the report specifically addressing the risk of serious harm, the author stated:

“[The Appellant] is assessed as posing a high risk of serious harm to children and to known adults. The nature of the harm posed to children is physical, emotional and psychological, and is most likely to be caused by incidents of contact sexual abuse. Such incidents are likely to include sexual touching, kissing, digital penetration and full intercourse. The risk to children is considered greatest following release; when entering a relationship with a person who has a female child whom he may gain access to for the purposes of sexual abuse; when feeling sexually preoccupied and is seeking sexual gratification from others and when he has access to female children.

Known adults are identified as the victim of the index offences, and her mother. The harm caused to the victim is emotional and psychological and is likely to be lasting when considering the level of trauma involved. I also assess that [the Appellant’s] offending has caused emotional harm to his ex-partner (victim’s mother) via the commission of the offences against her daughter whilst she was in a relationship with the [Appellant].

When requesting this report, the court asked for consideration to be given to the question of dangerousness as outlined in the Criminal Justice Act 2003. Whilst this is a matter for the court to decide, I would offer the following observations to assist:

1.

[The Appellant] has been convicted of numerous serious sexual offences, committed against his stepdaughter who is considered to have been vulnerable by way of age (17) and the fact that she was groomed and abused by the man who had cared for her for many years.

2.

The assessment tools have predicted him to be at low likelihood of re-offending, sexual or otherwise. However, it is my professional opinion that the likelihood of re-offending is greater and that a combination of structured offence focused work and numerous external controls will be required, post release.

3.

[The Appellant] denies he is sexually attracted to children and justifies his behaviour, attributing significant blame to the victim and demonstrating little insight into the harmful effects of his offending. Positively however, he has indicated a willingness to engage with offence focused work. He will require support to achieve this due to his literacy needs.

4.

He has no previous convictions or police cautions. However, given the period of time over which his offending occurred, it is my view that there is evidence of a clear pattern of offending.”

In terms of mitigation, it was submitted on the Appellant’s behalf that he was of good character, had admitted the offences when they were initially put to him, and had pleaded guilty at the first opportunity in the Crown Court. His background was that of a hardworking man who was consistently employed. For a long time he had suffered from depression, for which he continued to be medicated. Having reflected upon his conduct, the Appellant felt shame and remorse and was now mindful of the power imbalance that had existed in the family home and which he had exploited for his own gratification. Some of these factors – particularly remorse and insight – were somewhat undermined by the pre-sentence report.

In sentencing the Appellant, the judge took the final count as the lead offence and imposed a sentence on that count that reflected the totality of the offending. With reference to the sentencing guidelines, he assessed count 1 as falling into category 1A, which gave a starting point of six years’ imprisonment, with a range of four to ten years. The judge found that the commission of multiple offences over a prolonged period of time to be a factor that took the sentence beyond the range. Before mitigating and aggravating features, the judge determined that the correct sentence would have been one of 11 years’ imprisonment. The judge found that there were no other aggravating features beyond those that had been accommodated in the offence categorisation.

Although the judge found that little weight could be attached to the Appellant’s good character, for the other mitigation urged on his behalf, the judge made a reduction of one year. After application of the discount for the guilty plea, that produced a sentence of 7½ years.

The judge then turned to the issue of whether the Appellant was dangerous within the terms of s.280 Sentencing Act 2020, and whether an extended determinate sentence was necessary for the purposes of protecting members of the public from serious harm occasioned by the commission by the Appellant of further specified offences. The judge stated that he had considered the principles stated by the Court of Appeal in R -v- Lang [2006] 1 WLR 2509. He stated, however, that he could “not see anything in them that would operate to prevent [his] making the determination” that the Appellant was dangerous. He was unimpressed by the expression of remorse by the Appellant in his letter. He found that it was “a somewhat belated attempt to rectify the position” and stood in contrast to the description of his attitude to the offending in the pre-sentence report.

The judge nevertheless found that the Appellant was dangerous on the following stated basis:

“… first, you are no longer a young man and the potential for real and lasting change in you is more limited. However, nor will you be old when you are released. It is true that you have pleaded guilty, but I judge that to have occurred because you recognise the evidence was overwhelming. I also judge that you have sought to minimise your offending very substantially and seek to attach significant blame to your victim for it, within the pre-sentence report. From that fact, I draw the inevitable conclusion that you lack any deep remorse or insight into your offending. Indeed, so much is apparent from the fact that even on your own account, which includes the assertion that [the complainant] was to blame, you seem to have no awareness of the fact that, as the responsible adult and father figure, it was your responsibility to prevent her from acting in that way.

Next, and allied to this, is that you deny what is so obviously the case, and proved by your plea of guilty, namely that you are sexually attracted to children. That failure to acknowledge, coupled with the fact that you victim blame and have limited insight, makes you an obvious candidate for further offending, if not intensively supervised, in my judgment.

Next is the fact that the pre-sentence report author has noted you engaged in highly risky offending, seemingly oblivious to the chance of being caught. It follows that, in my judgment, although in other respects you are assessed as having respect for the law, you engage in risk taking offending sexually which, in my judgment, is apt to make you dangerous.

Next is that you clearly have a significant sexual need, and when that sexual desire is not met or not completely met by an adult partner, you engage in thoughts of or actual abuse of children. In this regard, I am extremely concerned that you seem to have commenced another relationship with another woman, whom you met over Facebook, with a daughter of a similar age, not very long after this one ceased.

Next, is the well-reasoned and considered view of the pre-sentence report author, that you are at a high risk of re-offending (page 9 of the pre-sentence report). That risk is of sexual abuse and exploitation of female children.

While I acknowledge there are other protective orders, such as the Sexual Offender notification requirements, and it may also be that much good work can be done with you between now and your release, it is, as the pre-sentence report author acknowledges, only when you are released that the result of that good work can be tested. And I judge the period following your release will be the time when it is of critical importance that the scrutiny and supervisions is at its most intense, and which needs to be for a longer period, to ensure its success.”

The judge was not satisfied that the period of licence following the Appellant’s release, nor the notification requirements to which the Appellant would be subject, were sufficient to deal with the risk of re-offending as the judge saw it. The judge did not consider whether any of the risks that had been identified could be met with the imposition of a Sexual Harm Prevention Order.

In his submissions to us today, Mr Barker has sought to persuade us to grant leave to appeal on the first ground: that the custodial term of 7½ years is manifestly excessive. He submits that the judge took too high a notional sentence before giving a discount for the guilty plea, and that he failed to give sufficient weight to the Appellant’s mitigation.

On the ground for which the Appellant has leave to appeal, Mr Barker submitted that the judge had been wrong on the evidence to find that the Appellant was dangerous; that none of the factors set out in Lang was present; and that there was much to be said in the Appellant’s prior conduct and his conduct after arrest that militated against a finding of dangerousness.

We shall deal first with the renewed application for leave to appeal in challenging the length of the custodial term. When refusing leave to appeal on that ground, the single judge said:

“The applicant, at the age of 52, sexually abused his (in effect) stepdaughter for a period of around a year, when she was 17. He exploited his position as stepfather; and his attempts to cast some blame on her as being a willing participant are both unacceptable and unattractive. There were repeated instances of sexual touching, digital penetration and full intercourse. It was agreed that, for guideline purposes, this was Category 1A offending, with a starting point of six years and a range of up to ten years for one offence. Given the multiplicity of instances here, I consider that, with 25 per cent credit for plea and allowing for such other mitigation as was available, a custodial term of seven years six months’ imprisonment cannot be said to be excessive.”

We agree with the observations of the single judge and have little to add. It was for the sentencing judge to assess the overall totality of the offending, to fix an appropriate sentence, and to assess the impact of the Appellant’s mitigation. He did just that. There was no error in his approach when he dealt with those matters. The renewed application for leave to appeal is based simply on the ground that the judge should have given more weight to the mitigation than he did. That is not a ground of appeal with a real prospect of success.

Stepping back, and in agreement with the single judge, we do not consider that a custodial term of seven and a half years was manifestly excessive. The renewed application on that proposed ground of appeal is therefore refused.

We consider that there is more substance in Mr Barker’s submissions on the second ground. Included within the Court of Appeal’s guidance in Lang is the following (at [17(ii)]):

“(ii)

In assessing the risk of further offences being committed, the sentencer should take into account the nature and circumstances of the current offence; the offender’s history of offending including not just the kind of offence but its circumstances and the sentence passed, details of which the prosecution must have available, and, whether the offending demonstrates any pattern; social and economic factors in relation to the offender including accommodation, employability, education, associates, relationships and drug or alcohol abuse; and the offender’s thinking, attitude towards offending and supervision and emotional state. Information in relation to these matters will most readily, though not exclusively, come from antecedents and pre-sentence probation and medical reports. … The sentencer will be guided, but not bound by, the assessment of risk in such reports. …”

Here the Appellant had no previous convictions. Beyond the commission of the present offences, against a single victim, there was no pattern to his offending. There was no other evidence to suggest that the Appellant had a sexual attraction to teenage girls – for example, material found on electronic devices, or through his associates or lifestyle. The Appellant’s attitude towards his offending had rightly been identified as a matter of concern, but it did not on its own demonstrate that he presented a significant risk of serious harm occasioned by the commission by the Appellant of further specified offences. There was no evidence either before or after the commission of these offences which supported such a conclusion. The judge considered that the age of the Appellant showed that his “potential for change” was limited. That was a valid point so far as it went. But against that there was also the fact that, now in his 50s, the Appellant had not previously committed any such offences.

The judge also referred to the Appellant’s new relationship with a woman who had a daughter of similar age to the complainant, but there was no suggestion that he had acted in an inappropriate way with her.

All of that militated against the contention that the Appellant was likely to offend against teenage girls.

The judge relied substantially upon the author’s conclusion in the pre-sentence report, which he described as “well-reasoned”. With respect, we do not consider that the report was “well-reasoned” in terms of its conclusions on the issue of dangerousness. The author of the report failed to identify clearly the evidence that supported the conclusion that the Appellant represented a significant risk of serious harm by the commission by him of further specified offences.

The assessment in the pre-sentence report that the Appellant posed a low risk of re-offending was met only by an unreasoned conclusion that in the author’s opinion the Appellant nevertheless did pose such a risk. The only factor identified in support of that conclusion was the fact that the Appellant had denied that he was attracted to children and had blamed the victim. We do not consider that this evidence was sufficient to support the conclusion that there was, overall, a significant risk of serious harm occasioned by the commission by the Appellant of further sexual offences against children.

The judge’s statement in respect of the Lang principles, that he “could not see in them” anything that would operate to prevent his making the determination seems to us potentially to have reversed the burden of proof. It was for the court to be satisfied, on the evidence, that the Appellant presented a significant risk of serious harm that justified the making of an extended sentence, not for it to be demonstrated that he did not.

As we have noted, the prosecution did not seek a Sexual Harm Prevention Order. Nor did the judge specifically address why, if there was a risk, it was not adequately dealt with by the making of such an order.

For these reasons we are satisfied that the assessment of dangerousness by the judge was flawed. Looked at in totality, the evidence was insufficient to support a conclusion that the Appellant presented a significant risk of serious harm by the commission of further sexual offences against children. The conditions for imposing an extended sentence were therefore not met. Consequently, we allow the appeal on this ground. We quash the extended sentence. In its place will be imposed a determinate sentence of 7½ years’ imprisonment.