R v FBD

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 the 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. We will refer to the appellant by the letters FBD in order to avoid the risk of jigsaw identification.

On 7 December 2023, following a trial in the Crown Court at Portsmouth before His Honour Judge Melville KC and a jury, the appellant was convicted of ten offences of Indecent Assault on a Male Person, contrary to section 15(1) of the Sexual Offences Act 1956 (counts 2, 4, 8, 9, 10, 12, 14, 20, 21 and 22), and of two offences of Indecency with a Child, contrary to section 1(1) of the Indecency with Children Act 1960 (counts 3 and 7). He was acquitted on various other counts which we need not detail. On 22 March 2024, the appellant (then aged 52) was sentenced by the trial judge. On 4 April 2024 the case was relisted for the sentences on counts 4 and 21 to be amended under the slip rule. The overall sentence was a standard determinate sentence of 14 years' imprisonment and a consecutive Special Custodial Sentence for an offender of particular concern (pursuant to section 278 of the Sentencing Act 2020) of 18 years, comprising a custodial term of 16 years and a licence period of two years.

The offences were committed against the appellant's two stepsons, to whom we will refer as "C1" and "C2", and three of their friends, to whom we will refer as "C3", "C4" and "C5".

Counts 2, 3 and 4 related to offending against C1. They were all multiple offending counts involving no fewer than five incidents. Counts 7, 8, 9 and 10 related to offending against C2. These were single incident counts. Count 12, a single incident count, related to C3; and count 14, also a single incident count, to C4. Counts 20, 21 and 22 were multiple incident counts involving at least two occasions. They concerned the offending against C5.

The determinate sentence of 14 years comprised a sentence of seven years' imprisonment on count 9 and a consecutive term of seven years' imprisonment on count 14. Concurrent sentences of lower terms of imprisonment were passed on the other offences, save for counts 4 and 21. The judge imposed a Special Custodial Sentence of nine years, comprising a custodial term of eight years and a licence period of one year on count 4. This was consecutive to the sentences for counts 9 and 14. He imposed a further Special Custodial Sentence of nine years, comprising a custodial term of eight years and a licence period of one year on count 21, which was ordered to run consecutively to the sentences on counts 9, 14 and 4.

A Restraining Order and a Sexual Harm Prevention Order were also made.

The appeal originally came before the full court on 27 June 2025. On that occasions the court allowed the appeal on ground 2 and quashed the Restraining Order. The same court allowed grounds 5 and 6 and so varied the terms of the Sexual Harm Prevention Order. Leave to appeal on ground 4 was refused, and ground 3 was not pursued. We are only concerned with ground 1, in relation to which the court gave leave to appeal and adjourned the hearing, with directions for the filing of skeleton arguments. We have been assisted by the helpful skeleton arguments and oral submissions on behalf of both the appellant and the respondent. Ground 1 contends that the sentence of 32 years was manifestly excessive.

C1 was aged between 12 and 13 at the time of the appellant's offending. C2, C3 and C4 were aged between 12 and 14 years at the time of the offending, and C5 (the youngest) was aged 10 or 11. The offences occurred between May 1998 and March 2001. The majority of the abuse took place at the appellant's home address.

The appellant married the mother of C1 and C2 in 1999. In 2019, C1, then in his early 30s, disclosed to his friend and wife that that he had been sexually abused by the appellant and that he had seen the appellant sexually abuse others. He later told his brother, C2. In January 2020, C2 reported the offending to the police and then told his mother.

We summarise the offending as follows. Over the course of time, the appellant used to ask C1 for a kiss. He then started to ask C1 questions about C1's penis and asked to see it. He told C1 that the more he used his penis, the bigger it would become. The appellant tried to touch C1's penis and make it hard (count 2). There were occasions when the appellant put C1's penis in his mouth (count 3). The appellant started to show C1 his penis and to ask C1 to touch it. It progressed with the appellant asking C1 to put his penis in C1's mouth (count 4). The first time he did that, the appellant was coming out of the bathroom and C1 was coming out of his bedroom. He asked C1 to give him a "blowjob", which C1 did. At first C1 would say, "No", but eventually he would agree to do so. C1 did not let the appellant come in his mouth.

C2 told police that the appellant made him feel special and gave him cigarettes. The appellant asked him about his sexuality. The appellant took his penis out in front of C2 and asked C2 to touch it, which he did (count 7). The appellant told C2 that it was normal. The appellant then asked for C2 to take his penis out. On another occasion, when everyone was in bed and C2 was watching television on the sofa, the appellant took out his penis and made C2 put the appellant's penis in mouth (count 9). The appellant then told C2 to undress and he put C2's penis in his mouth (count 8).

One afternoon when C2 and the appellant were alone in the house, the appellant pressed his groin against C2's bottom while C2 was playing pool. The appellant said, "I need to see if you like it in the bum" (count 10).

In 2021 C3 reported to the police that he had been molested by the appellant. He went on a fishing trip with C1 and then went back to C1's house. Once there, he saw C1 performing oral sex on the appellant in the bedroom. The next thing he knew, the appellant had sat on the bed next to him, undone his trousers and was touching C3's genitalia and masturbating him (count 12).

C4 was C3's twin brother. He reported matters to the police in 2022. The appellant used to ask C4 sexual questions and took him fishing a few times. One time, C4 went to knock for C1 and C2 but they were out. The appellant kissed C4 whilst the appellant played with himself. Just as the appellant was about to ejaculate, he put his hand on the back of C4's head and thrust his head down towards his genital area and told C4 to swallow (count 14).

C5 was another friend of C1. He was interviewed in June 2021. He used to stay over at C1's house at weekends. They used to do sexual dares with the appellant. At the time C5 thought it was fun, as at that age he did not know about sexual rights and wrongs. It went on for weeks or months. The appellant got C5 to masturbate him (count 20). When the dare was made, the appellant used to suck C5's penis, and C5 would suck the appellant's penis (counts 21 and 22).

The appellant had one previous conviction from 1995 (when he was aged 23) for an offence of gross indecency with a child, for which he was fined. In 2018 he received a conditional discharge for failing to comply with notification requirements.

As the judge noted, the maximum sentence for each of the 1956 Act offences of which the appellant was convicted was ten years' imprisonment. Pursuant to the approach identified by this court in R v HJ [2011] EWCA Crim 2753, the judge was obliged to sentence in accordance with the legislative provisions that were current at the time of the offending, but with "measured reference" to any definitive sentencing guidelines relevant to the circumstances established by the facts. As the Court of Appeal explained in that case, although the sentence must be limited by the statutory maxima in force at the time when the offences were committed, it would be wholly unrealistic to attempt an assessment of sentence by seeking to identify what the sentence for each individual offence was likely to have been had conviction and sentencing occurred when that earlier legislation was still in force. This approach has since been confirmed by the Guideline on Sentencing historical sexual offences.

In the present case, it was agreed that the relevant sentencing guidelines to which measured reference should be made were:

It is unnecessary for us to refer to the sentencing guidelines that were agreed to be the relevant equivalent in respect of the other offences.

Before going any further, we record that we are quite clear that the judge imposed the sentences that we have described in respect of counts 4 and 21. It appears that some confusion arose following a sentence query from HMP Full Sutton in January 2025, and an email chain with the Crown Court that followed, as to whether the judge had in fact imposed an extended sentence in respect of these counts, pursuant to section 279 of the Sentencing Act 2020. However, it is apparent from his sentencing remarks that the judge did not make a finding that the appellant was a dangerous offender and did not impose a sentence under section 279, as opposed to section 278. Moreover, the judge said in terms during his sentencing remarks that the appellant was "a particular offender of particular concern". There was nothing said at the slip rule hearing that throws any doubt upon this.

There were Victim Personal Statements before the court from each of the five victims. The judge concluded that they showed that all five complainants had suffered severe psychological harm and that the effects had continued throughout their lives. He described the appellant's offending as "an appalling series of abusive behaviours". He also referred to the "orchestration by you of a denigration of their lives to suit your perverted sexual wishes".

In relation to the offending against C1 in count 4, the judge placed the modern day equivalent offending in category 2 Harm, in light of his finding as to psychological harm. He found that Culpability A applied in light of the presence of grooming behaviour and the abuse of trust. Under the current guideline we have referred to, this gave a starting point of 13 years' imprisonment and an offence range of 11 - 17 years' imprisonment.

In respect of the offending against C2 in count 9, the judge placed the harm in category 1 in light of the severe psychological harm and the fact that penile penetration of the mouth was involved. Culpability A applied for the reasons he had identified in respect of the offending against C1. Thus, in relation to the relevant modern offence, sexual activity with a child, this gave a starting point of five years' imprisonment, and an offence range of between four and ten years' imprisonment.

In relation to C3 and count 12 (where a concurrent sentence was imposed), the judge found that the level of harm was category 2 and that Culpability A applied because of the grooming. The judge accepted the appellant's submission that, "strictly speaking", there was no abuse of trust, as C3 had gone to the appellant's home to see his friends, C1 and C2, rather than to see the appellant. However, he commented that the appellant had "wheedled" his way into C3's affections by some disgraceful behaviour. Accordingly, the current equivalent was a category 2A offence, for which the starting point under the relevant guideline was three years' imprisonment, with an offence range of up to six years' imprisonment.

The judge described the offending in relation to C4 as "appalling". He categorised it under the current guideline as a category 2A rape, with a starting point of ten years' imprisonment and an offence range of up to 13 years' imprisonment. However, he did not explain how he arrived at the finding of Culpability A – a point to which we will return. The judge did refer to the appellant's grooming of C4, but this is not listed as a Culpability A factor under the rape guideline.

The judge described count 21 as a "terribly serious offence". In relation to the modern day equivalent, he found that harm fell within category 2, given the severe psychological harm. He found that Culpability A applied, but he did not indicate the basis of this finding. However, in light of his other findings, including his reference to grooming when he came on to count 22, it is apparent that this was on the basis of grooming. Under the rape of a child under 13 guideline, the starting point would be ten years' imprisonment, with an offence range up to 13 years' imprisonment.

The judge then imposed the sentences to which we have already referred. He described count 4 as one of the two most serious offences (the other being count 21). He referred to the appellant's conduct in count 4 as "just about as bad as it can get". He explained that whilst he might have been inclined to impose the maximum of ten years' imprisonment, he would reduce this to eight years. In relation to count 9, the judge said that he reduced the eight years he would otherwise have imposed to seven years, in order to take account of totality. In relation to count 14, he said he would have sentenced the appellant to nine years' imprisonment, but would reduce this to seven years. Similarly, he indicated in relation to count 21 that he would reduce the ten years' imprisonment he would otherwise have imposed to eight years. It appears that these reductions were also to reflect totality. The judge went on to explain the sentences he imposed, which we have already set out.

The judge informed the appellant that he would serve two thirds of the total custodial period of 30 years and that the Parole Board would then consider whether he should be released. When released, he would serve the additional licence of two years in the community on conditional licence and subject to supervision. We will return to the question of how the appellant's release date should be calculated.

The judge made reference to ordering the appellant to pay a victim surcharge. However, later the same day it was clarified with the judge, and recorded on the Digital Case System, that no surcharge was due, given the date of the offending. Accordingly, it is unnecessary for us to address that aspect.

Mr Acworth submits that the judge did not take sufficient account of the difference between the ten year statutory maxima for the offences of which the appellant had been convicted and the Sexual Offences Act 2003 equivalents.

He also contends that the judge failed to take sufficient account of the number of incidents to which each count related in the context of the case as a whole. In this regard, he emphasises that the judge imposed a sentence of nine years' imprisonment on count 4 which concerned five similar incidents committed against C1, yet he also imposed nine years' imprisonment in relation to count 21 (which involved two incidents) and seven years' imprisonment in respect of the single incident counts (counts 9 and 14).

Mr Acworth further submits that the judge imposed an overall sentence that was manifestly disproportionate in ordering the sentences for counts 9 and 14 to run consecutively rather than concurrently, when he should have taken the latter course in order to take proper account of totality considerations. He submits that the reductions which the judge did make to take account of totality were insufficient.

In his skeleton argument, filed in response to the Respondent's skeleton argument, Mr Acworth raises a further issue, namely that the judge was wrong to find that count 14 was a category 2A offence in terms of its modern equivalence, as there was no Culpability A factor present. Had the judge approached matters on the basis of the modern day equivalent, this was a category 2B offence, the staring point for which would have been eight years' imprisonment, with an offence range of seven - nine years' imprisonment.

Consistent with the request made by the Full Court at the previous hearing, Mr Acworth drew our attention to the following illustrative examples: R v DJ [2015] EWCA Crim 563, [2015] Cr App R (S) 16 and R v Jones [2018] EWCA Crim 1499. He submits that these cases tend to suggest that offending meriting a sentence after trial of 30 years' imprisonment is of a different order of gravity to the offences for which the appellant was convicted.

Mr Houston draws attention to the preamble in the Definitive Guideline for Rape, which states:

By way of further illustrative examples, Mr Houston refers to JH (the citation for which has already been given); Attorney General's Reference (R v GT) [2024] EWCA Crim 961; R v Horley [2016] EWCA Crim 427; and Attorney General’s Refence (R v Charnley) [2010] EWCA Crim 1996.

We will begin by addressing the categorisation issue regarding count 14. We accept that the judge cannot have intended to find that there was an abuse of trust in relation to the offending against C4, when he had just indicated in terms that there was not, strictly speaking, an abuse of trust in relation to C3, his twin brother. For these purposes, there does not appear to have been any material distinction between their circumstances or positions, and, of course, as the trial judge, the judge was in the best place to assess this. As we mentioned earlier, grooming is not a Culpability A factor in respect of the equivalent 2003 Act offence of rape. It does not appear that any of the other Culpability A factors could apply. Accordingly, we accept that Mr Acworth is right in saying that in modern day terms this offence had a starting point of eight years' imprisonment, rather than ten years' imprisonment. However, this is of limited assistance to the appellant in itself, given that there were significant aggravating factors, which would justify an upwards movement, namely: ejaculation, time and location of the offending (at the appellant's home) and the previous conviction.

We mention for completeness, that Mr Acworth accepted in his Sentencing Note prepared for the judge that grooming was a factor present in relation to all five victims. This is a Culpability A factor in respect of the offending against C3 and C5. Accordingly, the fact that there was no abuse of trust as such in those instances, does not impact upon the correctness of the judge's categorisation.

We can dispose of a further point raised in Mr Acworth's skeleton argument at this stage. He accepts that the offending against the stepsons, C1 and C2, involved an abuse of trust. It follows, he says, that to also treat the timing and location of the offending (which took place in the appellant's home) as aggravating factors for these offences would involve double counting. Whilst we see the force of this point, there is, however, no indication that the judge did double count in this way; he did not identify those aspects as aggravating factors in respect of those offences.

We turn to the grounds set out in the Grounds of Appeal. We consider that the judge's sentencing remarks show that he was mindful of the significantly different statutory maxima that applied in relation to the 1956 Act and that he was fully aware of the way in which the guidelines for the equivalent modern day offences should be used. He was also conscious of the need to take account of totality and, as we have described, made certain reductions to reflect this.

The key question for us is whether the sentence imposed was, overall, just and proportionate to the appellant's very serious offending. In terms of the preamble to the current sentencing guidelines that we have already referred to, we note that at paragraph 8 in JH, this court indicated that there need not be a "campaign" as such and that "a case of repeat very serious offending" would justify the imposition of a sentence of 20 years' imprisonment or above. This is such a case. At paragraph 54 in Jones, this court referred to this approach as applying to both rape and sexual assault.

There is no doubt whatsoever that a very substantial sentence was required to reflect the appellant's appalling and sustained offending in this case. However, we accept that there is considerable force in Mr Acworth's submission that offending which merits a sentence after trial of 30 years' imprisonment is of a different order of gravity to the offences for which the appellant was convicted. It is unnecessary to set out in detail the examples that were cited to us. Each case turns on its own fact sensitive circumstances, but we have read each of the authorities that we were referred to and we have found these cases to be of some assistance. In short, they bear out Mr Acworth's submission.

In addition, albeit these are secondary features, because we are primarily concerned with the overall sentence, we accept that there is some force in Mr Acworth's point that counts 9 and 14 each involved only a single offence and, as such, there was insufficient differentiation between the sentences passed for these offences and for the most serious offences in counts 4 and 21, which were both multi incident counts. In addition, there is the categorisation issue in respect of count 14, which we have already identified.

In arriving at our conclusions we have, of course, borne in mind the entirety of the twelve offences committed by the appellant, albeit for the purposes of our analysis we have concentrated on the consecutive sentences that were imposed.

In light of all these considerations, we conclude that a just and proportionate course would be to reduce the overall sentence to one of 25 years' imprisonment. We intend to do this by ordering the sentences of seven years' imprisonment imposed on counts 9 and 14 to run concurrently, rather than consecutively, but otherwise to leave the sentences undisturbed. We emphasise that this course is in no way to diminish the seriousness of the appellant's offending towards C2 and C4. We fully acknowledge the severe and lasting impact that the offending has had upon them.

The effect of us taking this course is that the appellant will serve a standard determinate sentence of seven years' imprisonment and consecutive to that a Special Custodial Sentence for an offender of particular concern of 18 years, comprising a custodial term of 16 years and a further licence period of two years. We allow the appeal on count 1 to this extent.

Given that the appellant is an offender of particular concern, his eligibility for release on counts 4 and 21 is governed by section 244A of the Criminal Justice Act 2003 ("CJA 2003"). Section 244A(2) provides that where a prisoner is serving a sentence imposed under section 278 of the Sentencing Act 2020, the Secretary of State must refer the prisoner's case to the Parole Board as soon as he has served the "requisite custodial period". Section 244A(6)(aa) defines the "requisite custodial period" as being two-thirds of the appropriate custodial term for those sentenced after 28 June 2022. Where consecutive sentences are imposed, the Secretary of State is not required to refer the case to the Parole Board until the prisoner has served the aggregate of the length of the minimum custodial periods in each of the terms: see section 264(2D) of the CJA 2003.

Accordingly, the appellant will be referred to the Parole Board to consider his release, once he has served the aggregate of the custodial elements of the standard determinate sentence and the Special Custodial Sentences for offenders of particular concern.

This will be: (1) 50% of the determinate sentence of seven years that we have indicated. The reduction from 50% to 40% in the Criminal Justice Act 2003 (Requisite and Minimum Custodial Periods) Order 2024, SI 2024/844 at paragraph 3(2) does not apply to the offences listed in the Schedule to the Order (see paragraph 3(6)) and that Schedule includes offences under the Sexual Offences Act 1956 and Indecency with Children Act 1960; and (2) 66% of the aggregate custodial terms that remain undisturbed in respect of counts 4 and 21.

As the judge explained in his Sentencing Remarks, the appellant will then be subject to the additional licence period of two years in the community on conditional licence and subject to supervision. The appellant must abide by the conditions of his release or be liable to serve the full sentence in custody.

Lastly, we will grant a representation order in respect of count 1, as we understand that previously the representation order did not extend beyond counts 5 and 6.