R v MCK

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 applicant by the letters MCK in order to avoid the risk of jigsaw identification.

This is a renewed application for leave to appeal against sentence following refusal by the single judge.

On 22 October 2024, in the Central Criminal Court, the applicant (then aged 58) was sentenced by His Honour Judge Lickley KC. The applicant had earlier pleaded guilty to three offences concerning the making of indecent images of children, contrary to section 1(1)(a) of the Protection of Children Act 1978, and one offence of possession of a prohibited image of a child, contrary to section 62(1) and 66(2) of the Coroners and Justice Act 2009 ("the images offences"). He was sentenced to eight months' imprisonment in relation to the most serious of these offences, relating to Category A images, and lower sentences of imprisonment, imposed concurrently, in respect of these other three offences.

The applicant had also been convicted following a trial of ten offences in relation to the first complainant, to whom we will refer as "C1", and two offences in relation to the second complaint, to whom we will refer as "C2". All sentences were imposed to run concurrently with each other. The offences in relation to C1 were Rape of a Child under 13, contrary to section 5(1) of the Sexual Offences Act 2003 (counts 1 and 2); Attempted Rape of a Child under 13 (count 3); Sexual Assault of a Child under 13, contrary to section 7 of the 2003 Act (counts 4, 5, 8, 9 and 10); and Assault of a Child under 13 by penetration, contrary to section 6(1) of the 2003 Act (counts 6 and 7). The judge imposed sentences of 11 years' imprisonment on count 1; an extended determinate sentence of 26 years on count 2, comprising a custodial term of 21 years and an extended licence period of five years; eight years' imprisonment on count 3; three years' imprisonment on each of counts 4, 5, 8 and 9; seven years' imprisonment on counts 6 and 7; and 12 months' imprisonment on count 10.

In relation to C2, the applicant was convicted of three offences of Sexual Assault of a Child under 13. Concurrent terms of three years' imprisonment were imposed on each count.

The applicant has been represented before us by Mr T Montgomery, who also appeared below. We are grateful to him for his assistance.

The applicant was a long standing family friend of the parents of C1 and C2, who are sisters. The offences were committed between 2016 and 2022. The sisters would often stay overnight at the applicant's house without their parents. Other times he would collect them from school and take them back to his house. He bought them presents and spent large sums of money on them.

The abuse of C1 began when she was 7 or 8 years old and continued until she was 12. The applicant began to distance himself from C1 after she told him "No" when he tried to touch her between the legs when sitting in a car (count 10). The applicant then began to sexually abuse C2, her younger sister.

Matters came to light on 21 June 2023, when C2 confided in some school friends and then told a trusted teacher what the applicant had done to her. C1 (then aged 13) was interviewed by police in June 2023. C2 (then aged 11) was interviewed the following month.

Count 1 was the oral rape of C1. Count 2 was a multiple incident count of at least three further oral rapes of her. Count 3 was, as we have noted, an attempted rape. Count 4 concerned a single incident when the applicant licked C1's vagina. Count 5 was a multiple incident count encompassing at least three further occasions when the applicant licked C1's vagina. Count 6 was a single incident of assault by penetration where the applicant digitally penetrated C1's anus. Count 7 was a multiple incident count representing at least three further such offences. Count 8 was a single incident of sexual assault where the applicant touched C1's vagina. Count 9 was a single incident of sexual assault where the applicant used a vibrator on C1's vagina. Count 10, to which we have already referred, was the last offence committed against C1.

In terms of the offending against C2, count 11 was a single incident count of the applicant licking C2's vagina. Count 12 was a single incident of sexual assault where the applicant rubbed his penis against C2's vagina. Count 13 was a multiple incident count representing at least two further occasions of the same behaviour.

Police searched the applicant's home on 27 June 2023. Officers found a memory stick on top of a wardrobe. It held both still and moving indecent images of children: 260 category A images, 131 category B images, and 683 category C images. There were also five sexually explicit fake images. The children depicted were aged between 4 and 12.

The applicant had one previous conviction from 2010 for persistently soliciting a woman for prostitution from a motor vehicle.

Victim Personal Statements from C1 and from the mother of C1 and C2 were before the Crown Court. The Judge said that they showed that the applicant's behaviour had had a devastating effect on the family and the individuals within it.

The author of the pre-sentence report described the offending, including the applicant's grooming behaviour, and emphasised that he continued to deny the sexual offending, claiming that the victims had conspired against him. Whilst accepting his guilt in respect of the images offences, he tried to downplay his conduct by suggesting that he had a sexual interest in teenage girls, whereas the police analysis indicated that the images depicted females between the age of 4 and 12. Despite the applicant's denial, the author of the report considered that there was a very clear link between the images offences and the sexual offending. The applicant admitted accessing abuse images on the dark web. He said that he understood how it worked. He also referred to an online space on the dark web for sexual offenders who shared abuse images. The author considered that the lack of relevant previous convictions was not representative of the applicant's character, given that he had been offending for a significant period of time and the nature of that offending.

The author of the report concluded that the applicant presented a High Risk of Serious harm to children as his behaviours had evidenced that he had the criminal capacities and attitudes to subject young children to serious sexual abuse; but for the complainants' disclosures to police, the applicant would have continued to offend; and his offence supportive attitudes were still active.

We will focus on the sentences imposed for the sexual offending.

The judge described how the applicant had groomed C1 and C2. He had taken advantage of the close friendship with their mother and the fact that the girls regarded him as a grandfather figure. He described the abuse of trust as "a very significant and major aggravating factor". He was satisfied that the applicant had had a sexual interest in young females for a very long time.

There is no issue over the judge's categorisation. He observed that counts 1 and 2 were the most serious offences. They involved category 2 Harm, as C1 was particularly vulnerable as the applicant had taken her into his home, where she was isolated from her family. Multiple Culpability A factors were proved, namely: a significant degree of planning, the grooming of the victim, and the very significant abuse of trust. The offences were aggravated by the fact that, on occasions, the applicant ejaculated. This analysis of culpability factors applied to the other offences as well.

Accordingly, the starting point for counts 1, 2 and 3 was 13 years' imprisonment, with a range of up to 17 years. In relation to counts 4, 5, 8 and 9, the categorisation was 2A, giving a starting point of four years and a range of up to seven years' imprisonment. Counts 6 and 7 were also 2A offences, giving a starting point of 11 years, and a range of up to 16 years' imprisonment.

The offences against C2 were also categorised as 2A.

The judge concluded that given the findings of the author of the pre-sentence report and the nature of the offending – particularly the targeting of children who regarded the applicant as a member of their family – the applicant would "if not forever, for a very long time pose a very high risk of re-offending in a similar way". The particular risk was to young females under 13 in whom the judge found the applicant to have an entrenched deviant interest.

The judge took count 2 as the lead offence. He indicated that the nature and extent of the applicant's offending on counts 1 - 10 warranted a movement upwards within the sentencing range to the upper end of the range, namely 17 years' imprisonment. The figure was then further revised upwards to reflect all of the other offences, including the offending in counts 11 to 13, but allowance was made for totality. The judge concluded that if he had been passing a determinate sentence, the least period of imprisonment that he could impose would have been 21 years. However, a determinate sentence would not fully address the risk that the applicant represented and thus an extended licence period of five years would also be imposed to protect the public in the future.

There are two proposed grounds of appeal. The first is that the judge's decision on dangerousness, namely that the applicant posed a significant risk of the commission of serious specified offences, was not one at which any reasonable judge could arrive. Mr Montgomery emphasises the applicant's age and his lack of any relevant previous convictions. He contends that the circumstances that led to this offending, which occurred in the context of the applicant's involvement with a particular family, are highly unlikely to be reproduced in the future.

The second proposed ground of appeal is that, given the applicant's age and lack of any relevant previous convictions – and indeed only one minor conviction at all – the custodial term of 21 years was longer than it needs to or should have been.

We do not consider that either of these grounds are arguable.

The assessment of the author of the pre-sentence report, which we have already summarised, the nature of the targeted offending over a sustained period, the applicant's entrenched sexual interest in young females, and his ongoing failure to acknowledge this, when taken together, provided a sound basis for the judge’s conclusion as to dangerousness. The judge accepted that the applicant had no relevant previous convictions and he was plainly aware of his age. However, these factors did not arguably counter the conclusion that the judge reached in light of the combined effect of the factors that we have highlighted.

As regards ground 2, the judge was plainly correct to take an overall approach to this sentencing exercise and to treat count 2 as the lead offence in the manner we have described. He carefully and accurately identified where the respective offending fell in the guidelines. He then rightly increased the starting point figure considerably to take account of the overall offending, which involved multiple serious sexual offences and a second victim. He made appropriate adjustments for totality. We consider that the custodial period of 21 years was in line with the sentencing guidelines and was just and proportionate, in light of the circumstances we have described.

Accordingly, we refuse the renewed application for leave to appeal against sentence.

For the avoidance of doubt, although the possibility was flagged by the single judge we do not make a loss of time order.