R v Malcolm Paul Blackmore

The provisions of the Sexual Offences (Amendment) Act 1992 apply to this case. Under those provisions, where an allegation has been made that 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 that offence. This prohibition applies unless waived or lifted in accordance with section 3 of the Act.

On 4 July 2024, in the Crown Court at Wood Green, the Appellant was convicted of three counts of indecent assault, contrary to s.15(1) Sexual Offences Act 1956. The jury were unable to reach verdicts on three further counts of buggery, contrary to s.12(1) Sexual Offences Act 1956 and the prosecution did not seek a retrial of those matters.

On 25 October 2024, the Appellant, then aged 83, was sentenced to 5½ years’ imprisonment on each count, each sentence to be concurrent. With the leave of the single judge, the Appellant contends that, having regard to a previous sentence of imprisonment for similar offending, the sentence was manifestly excessive.

The facts of the present offences are these. Between 7 January 1983 and 7 January 1990, the complainant was a pupil at a school in Enfield. He was aged in that period between 11 and 17 years old. The Appellant was the head of the PE Department at that school and during the relevant period was himself aged between 41 and 48.

The first incident charged on the indictment involved the Appellant groping the complainant’s penis, testicles and bottom after he fell from a vault box during a gym lesson. This occurred weeks into his first term at secondary school when he was aged 11.

On a further occasion, when the complainant was aged 11, the Appellant groped and fondled his genitals in the Appellant’s car when he was taking the complainant to the Queen Elizabeth Stadium where he was going to practice pole vaulting.

The third count was a multi-incident count where the Appellant was alleged indecently to have assaulted the complainant in a similar fashion throughout his secondary school years on a weekly basis, but the indictment limited it to at least 10 occasions, by touching on his naked genitalia and bottom. The complainant alleged that the Appellant would touch him inappropriately every time he got the opportunity to be alone with the complainant. He said he felt powerless to resist or to report the abuse because the Appellant was head of the PE Department and head of the Sixth Form and pupils regarded him as somebody “not to be messed with”.

The Appellant had previously been convicted of similar offences in 2017. On 3 May 2017, he was sentenced at the Central Criminal Court to a total of five years’ imprisonment for counts of indecent assault against two pupils at the same school. The period of offending was in that instance 1982 to 1985, so it overlapped with the current offences. The age range of the two victims in the earlier case was approximately 13 to 15 years. Leave to appeal against the sentence imposed by the Crown Court was refused by the Court of Appeal on 27 August 2017: [2017] EWCA Crim 2626. The details of the offending are summarised in that earlier decision.

At the sentencing hearing in the current case, the judge had a pre-sentence report, sentencing notes from the Crown and the defence, a victim impact statement, character references from the Appellant’s family and a psychological report. As to the approach to the sentence for the immediate offences there was agreement between the Crown and the defence. The court should have measured regard to the sentencing guidelines for an equivalent modern offence, whilst recognising that the maximum penalty for the offences of indecent assault was 10 years’ imprisonment.

For the lead offence the relevant guideline was that for a sexual assault on a child under 13. It was agreed that the offence fell into Category 1A having regard to the significant breach of trust and the serious impact on the victim. On behalf of the Appellant, it was argued at the sentencing hearing that all offending was confined to the 1980s and there had been no repetition.

The issue of totality was the significant one for the judge. Having regard to the principles identified in R -v- Green [2019] 4 WLR 37, it was submitted to the Judge, on behalf of the Appellant, that (a) the sentence from 2017 was completed relatively recently (indeed after he was interviewed for the further matters), (b) the previous and instant offences were very similar, (c) there was an overlap in time of three years in terms of when they were committed, (d) taking the previous sentence into account would not, on the facts of the immediate case, give the defendant any undeserved bonus which would be contrary to the public interest, a factor that had also been identified by the Court of Appeal in R -v- McLean [2017] EWCA Crim 170, (e) the defendant’s physical and mental health had markedly declined since his previous incarceration, and (f) the defendant’s conduct in prison and since his release have been exemplary.

In light of those factors, the defence urged the judge to make a substantial reduction in the sentence that would otherwise have been justified to take account of the earlier sentence that he had served. On the Appellant’s behalf it was urged that he had significant personal mitigation. In particular the judge had a psychological report in which it was stated that the Appellant was suffering from a mixed depressive and anxiety disorder, he had a deteriorating memory that might be consistent with the early stages of Alzheimer’s disease and his previous conviction had had a major impact on him and he was very fearful of being returned to custody.

In terms of general health, the Appellant was 83 years old with several health issues, including pulmonary fibrosis for which there is no cure. Given his age and his vulnerabilities, the prognosis for the Appellant was, it was submitted, bleak. The picture of the Appellant’s health was also confirmed and reflected in the references that had been provided by the Appellant’s family.

The judge accepted that the principle of totality required some reduction in the sentence. He allowed a reduction of 12 months, producing a sentence of 5½ years’ imprisonment. The judge recognised that given the Appellant’s health condition there was a prospect of the Appellant dying whilst serving the sentence that he had imposed. The judge did not consider that in the context of his offending the Appellant’s good character and character references provided much by way of mitigation. He did not consider that the Appellant’s overall health meant that a sentence of imprisonment would be unduly harsh on him.

On behalf of the Appellant today, Ms Gomersall has submitted that a further sentence of 5½ years for the current offending, having regard to the sentence of 5 years previously imposed, was manifestly excessive. She suggests that a total sentence of 10½ years’ imprisonment is too long, having regard to the totality of the offending, and that the judge should have made a more significant reduction in the sentence to ensure that the overall sentence was just and proportionate.

In the original grounds, complaint was also made that the judge failed to give sufficient weight to the Appellant’s mitigation. Miss Gomersall however has not pursued that as a separate ground today. She submitted that the issue of mitigation can be subsumed into her main ground.

The decision whether and to what extent the sentence should take into account a sentence for an earlier offence is an exercise of judgment. It is not automatic, and it is not simply a matter of considering what sentence would have been imposed had the matters been dealt with altogether on the earlier occasion. True it is that, had the Appellant been sentenced for all the offences in 2017, the sentencing judge would have been bound by the principle of totality in fixing the appropriate sentence. However, as the authorities recognise, in many cases where sentences are imposed on separate occasions (as here), a large part of the responsibility for the fact that the offences were not sentenced together lies with the defendant who could have admitted his further offending when he was dealt with for the first offences. Nevertheless, the court must still have regard to the total sentence that will have been imposed.

Here, we are not persuaded that the judge did not give sufficient weight to the principle of totality or that the sentence of 5½ years’ imprisonment was manifestly excessive. Looked at overall, the Appellant was guilty of eight counts of indecent assault of three child victims in serious breach of trust. In respect of the present offending, the victim was repeatedly subjected to indecent assault over a period of many years which was much more serious than the 2017 convictions. Against that, a total sentence of 10½ years is not manifestly excessive. The reduction of a year applied by the Judge adequately reflected the need to ensure that the sentence for these present offences was not disproportionate having regard to the totality of the offending.

As regards mitigation, the sentencing remarks demonstrate that the judge carefully considered the mitigation available to the Appellant. We are not persuaded that the sentence he imposed failed to give sufficient weight to those factors in fixing the sentence he did.

For those reasons the appeal is dismissed.