R v Warren Waldrom

LORD JUSTICE WARBY: The applicant in this case seeks leave to appeal against sentence for sexual offending. The provisions of the Sexual Offences (Amendment) Act 1992 apply. The effect of those provisions is that the complainant to whom we shall refer has a right to lifetime anonymity. We will therefore anonymise her as C. To preserve C’s anonymity we will also anonymise a friend of hers who features in the case. There is no need or reason to anonymise the applicant.

On 24 February 2023, after a trial in the Crown Court at Leicester, the applicant, Warren Waldrom, was convicted of one count of assault by penetration (count 1) and one count of rape (count 2). On 27 April 2023 he was sentenced by the trial judge, His Honour Judge Head to four years six months' imprisonment on count 1 and seven years six months' imprisonment consecutive on count 2. The total sentence was thus one of 12 years' imprisonment.

An application for leave to appeal against sentence was made by the applicant's trial counsel on the single ground that the judge had failed to take sufficient account of totality. On 30 August 2023 that application was refused on the papers by the single judge, that decision being notified to the applicant in early September 2023.

Nothing was done at that time to renew the application. The applications that are now before the court were not made until about a year and eight months later, in May 2025. By those applications the applicant, now represented by new solicitors and by leading counsel Miss Heeley KC, seeks an extension of time to renew the original application and leave to add four further grounds of appeal by amendment. He also seeks leave to adduce new evidence on the proposed appeal pursuant to section 23 of the Criminal Appeal Act 1968.

The court's approach to late applications was identified in R v Bennett [2023] EWCA Crim 795 albeit in a different context. When deciding whether to extend time, the court will examine all the circumstances of the case, including the length of the delay, the reasons (if any) for it and the overall interests of justice. All of those factors also come to bear on the application to amend the grounds of appeal well out of time and the fresh evidence application.

The delay in bringing these applications is explained in a letter from the applicant's solicitors and in the grounds of appeal. In summary the applicant acted promptly to instruct new solicitors in September 2023, a matter of days after the single judge's decision was notified. But his instructions then were that the question of sentence had been addressed by trial counsel. He wanted the new solicitors to consider an appeal against conviction. To that end the solicitors instructed a consultant psychologist, Dr David Rothenberg.

Dr Rothenberg's first report was received on 1 November 2024. It did not support an appeal against conviction. Dr Rothenberg's report did however prompt a review of the position in relation to sentence and on 11 February 2025 Dr Rothenberg provided a second, addendum report expressing the view that the mental health findings at which he had arrived warranted careful reconsideration of the applicant's culpability.

The new grounds of appeal were finalised some eight weeks later on 1 April 2025. The grounds of appeal tell us that other factors contributing to the delay were the need to find funds for the application, to obtain transcripts and to approach and obtain comments from trial counsel.

We note that three of the new grounds are entirely independent of the expert evidence and, making all reasonable allowance for all the factors relied on, we do not consider that a total delay of 20 months in seeking to reopen the issue of sentence can be regarded as justifiable.

That said, as we have indicated, unjustified delay is not necessarily the end of the matter and we have therefore gone on to consider the merits.

On 8 July 2019, C and her friend J, who were both 15, were socialising with the applicant at his home address. He was 24 at the time. J had contacted him. He was a friend of hers, and he had agreed to get them alcohol on the basis that they would all consume it together at his home. He drove to collect them, bought two bottles of vodka and drove them to his home where, throughout the evening and into the early hours of the morning, all three drank alcohol and smoked cannabis.

C said that the applicant introduced a drinking game with sexual connotations which affected her and J. At one point J went upstairs to lie down because she had drunk too much. C lay down next to her, then the applicant entered the room, lay down next to her (C) and digitally penetrated her vagina. That was count 1. She told him to stop and he did.

The applicant then asked C if she would continue playing the drinking game with him. C went downstairs and began to play the game. During that time, C messaged another person making it clear that she was worried about the applicant. After a brief period playing the card game the applicant pulled down C's trousers and inserted his penis into her vagina. He did not wear a condom and he ejaculated inside her. That was count 2. A neighbour reported hearing a distressed female crying "no" in the early hours of the morning. The total duration of these events, as Miss Heeley has pointed out today, was some 40 minutes.

C went upstairs and told her friend that she wanted to go home. The applicant offered to drive them. After the journey C told her friend what had happened. Thereafter she told her mother and another friend and the incident was reported to the police and the proceedings were brought.

The proceedings took some time and by the time of sentence the applicant was 30 years old. He had no previous convictions. He had two cautions for non-sexual matters and he had also been formally advised by police after an incident. There was no pre-sentence report. The prosecution put forward for consideration a document entitled, "Summary of sexual behaviour" which set out concerns about the applicant that had been harboured by the police. That was objected to by the defence. On the defence side there were several character references attesting to the applicant's good character.

The judge heard argument about the summary of sexual behaviour document and ruled that he could not take it into account. He then turned to the appropriate sentences for the offences. The judge held that each offence was in harm Category 3 within the applicable sentencing guideline. The evidence showed that C was not only young but also troubled. Her victim personal statement and the medical report showed the effect on her was marked. But the judge found that the evidence did not go so far as to show that C had suffered "severe psychological harm" or that she was "particularly vulnerable due to personal circumstances" within the meaning of those phrases in the guideline. Nor was this a single "sustained or prolonged incident" within the meaning of those words in harm Category 2. The two counts were very distinct episodes in different parts of the house separated by an appreciable period of time. The judge's conclusion was that "it is right to impose consecutive sentences while being very alive to the need to consider totality."

The applicant's culpability in respect of count 2 (rape) was assessed as being in Category A. The offending was not opportunistic as had been submitted on his behalf. It had involved a significant degree of planning. The applicant had intended to engage in sexual activity whether the female was willing or not. He had ignored clear signs that neither C nor J was interested in him. He had also used alcohol and cannabis to make them compliant. The category starting point was therefore seven years with a range of six to nine years. The offence was "grossly aggravated" by the fact of ejaculation without contraception, indifferent to the risk that C might get pregnant and by the fact that she was 15 as the applicant knew. The mitigating factors were the absence of convictions and the character references. The cautions were for non-sexual offences and they and the formal advice would be ignored. But the aggravating features far outweighed the mitigation.

Count 1 was also a Category 3A case with a guideline starting point of four years and a range of two to six.

The judge considered whether an extended determinate sentence was necessary but concluded that it was not. Whilst there was a body of material that raised suspicion that the applicant was sexually predatory towards young girls, it fell “far short of the necessary degree of cogency” to make the judge sure that he was dangerous. In any event the sentence that would be imposed would detain the applicant for a prolonged period. That sentence was the one of 12 years we have mentioned, made up in the way we have described: four-and-a-half years for the offence of digital penetration and seven-and-a-half years for the vaginal rape.

The judge went on to say that if, contrary to his view, these two offences should have been treated as one prolonged episode, each falling in harm Category 2, then he would have arrived at the same overall sentence. The rape would have been the lead offence attracting a sentence of 12 years with a concurrent sentence of nine years for the digital penetration.

The single ground of appeal advanced by the applicant's trial counsel was that the sentence imposed was manifestly excessive "for want of proper consideration for totality." The single judge rejected that as unarguable, given what the judge had said about the sentences he would have imposed had he viewed the offending as a single sustained incident.

The four further grounds since settled by Miss Heeley are that (1) the judge was wrongly given inadmissible material, (2) the categorisation of the offence was too high, (3) there was a lack of consideration in respect of totality and (4) the judge did not have the benefit of a psychological report. Ground 3 overlaps with the original ground of appeal. We will deal with the two together. Ground 4 is based on Dr Rothenberg's reports.

We are grateful to Miss Heeley and to Mr Harris for their written and oral submissions. We address the grounds in the order that they appear in the perfected document prepared by Miss Heeley.

This ground relates to the prosecution's summary on which the judge gave his ruling. The written grounds said that "even though the judge said he would disregard it, there must be real concern that he was unable to ignore the matters raised therein". It was suggested, as it has been in the submissions today, that the judge may have subconsciously taken these matters into account.

In our judgment this point lacks any merit. Judges are trained and accustomed to put irrelevant material to one side. We have no doubt that this experienced judge did as he said. There is nothing in the sentencing remarks nor any other basis to suggest otherwise.

Miss Heeley has submitted that the evidence provided no basis for a finding that there was planning or that alcohol was used to facilitate the offence. The appropriate categorisation was therefore culpability B. It has also been submitted that the judge erred in his approach to aggravation and mitigation. He was not entitled to find that there was a significant disparity in age. He put too much weight on C's vulnerability and too little on the applicant's good character and he failed to factor in the two-year delay in charging the applicant, his age at the time of the offending and his good behaviour in the interim period.

We do not consider any of these points to be arguable. As to categorisation, the judge had a great advantage over this court, and over the applicant's new legal team, in that he had seen and heard all the evidence at the trial. He was plainly entitled to find that the disparity in age was significant. As a matter of common experience, there is a considerable gulf between the maturity of an adult male of 24 and that of a female child of 15. Nothing about these individuals suggested the gulf was materially narrower here. On the contrary, the evidence clearly suggested that C was more vulnerable than average. In that context, and given the basic facts of the case, it was plainly open to the judge to conclude for the reasons he gave that the applicant's behaviour was planned rather than opportunistic; or as Miss Heeley has put it today, spur of the moment. The judge was also entitled to find that the consumption of alcohol was not simply a consensual activity engaged in by and between peers but something that the applicant had encouraged and facilitated for a reason.

In our view, the judge's approach to the aggravating and mitigating factors in the case is not open to criticism. The prosecution delay does not sound as mitigation; it is a consequence of the applicant's failure to admit the offence, and there is no evidence that the delay had any unfair detrimental effect on the applicant. The matters of aggravation and mitigation were correctly identified and in our judgment the balance was properly struck. A lack of previous convictions was noted but such a situation is common in sexual offending and has very limited weight in a case of this gravity.

Like the single judge we see no merit in this ground. The sentencing remarks make clear that the judge had regard to the principle of totality. We see no basis for finding that he then failed to apply the principle. In our judgment he was right to regard this offending as involving two separate incidents. He was at least entitled to do so and his alternative reasoning was plainly legitimate. On that footing the judge was required to identify the appropriate sentence for a course of conduct that involved digitally penetrating a 15-year-old and then raping her vaginally with the further aggravating feature of unprotected ejaculation. There had to be a very substantial uplift from the category starting point for the rape. The overall sentence may have been towards the upper end of the range properly available to the judge, but it plainly fell within that range. The contrary is not, in our view, arguable.

In R v James [2018] EWCA Crim 285, [2018] 1 WLR 2749 at [4] the court observed that it can be the case that legitimate grounds of appeal emerge many months or even years after the event but that is rare. In this case we consider four points to be noteworthy. First, so far as culpability is concerned, Dr Rothenberg's key conclusion is that the applicant's mental state was affected at the relevant time by various factors, the confluence of which "would have affected his impulse control and judgment of his actions to a clinically significant extent". Dr Rothenberg's reports do not address the specific behaviour of the applicant at the time of the index offences.

Secondly, the conclusions are heavily reliant on diagnoses of the applicant arrived at during his childhood years. As a child he was diagnosed as presenting with ADHD. But Dr Rothenberg did not observe any clinical signs of that condition. He did observe traits of ASD but was not able positively to diagnose the applicant as currently having any recognised mental health disorder. The high point of his opinion is that the applicant had some autism-like traits at the time.

Thirdly, there is the judgment of those who were involved in the trial. Neither the applicant nor his trial solicitors nor his then counsel ever thought a psychological report might be required for the purposes of trial or sentence. There was every reason for all of them to consider the point. The applicant must have known of the childhood diagnosis. All the professionals involved are experienced. The trial solicitors tell us that they pride themselves on being alive to the possibility that mental health issues may be significant for the case of their client. Yet no report was sought in the Crown Court, nor was any point about mental health advanced in the first application for leave to appeal against sentence. The applicant did not ask his new legal team to look into that issue in the context of sentence when he instructed them in September 2023. This ground appears to be an adventitious byproduct of an unsuccessful attempt to identify a viable ground of appeal against conviction.

The fourth, and in our view the conclusive point, is provided by the judge's factual analysis. The judge found that the applicant at the age of 24 engaged over a period of time in planned and predatory behaviour towards a girl of 15, using drugs to facilitate his aims, and continued despite explicit protest from his victim. We do not consider that these key findings are affected in any material way by Dr Rothenberg's expert opinion that the applicant may have had a tendency to behave in an impulsive way and some difficulties in processing messages and exercising self-control. The judge's conclusions on culpability remain unassailable. Indeed, as it seems to us, Dr Rothenberg's analysis might have counted against the applicant as tending to support a finding of dangerousness.

Finally, we note that Miss Heeley's written grounds relied on the report to support an argument that the sentence should have been shorter because the impact of imprisonment would be particularly harsh for this applicant. We can see from his reports that Dr Rothenberg does not believe that long-term incarceration assists rehabilitation, either generally or in this case. But a lengthy sentence was inevitable on these facts. We do not see how the report could have an impact on its duration.

For these reasons we do not consider any of the proposed grounds of appeal to have arguable merit. We therefore refuse the extension of time to renew the original ground of appeal, refuse leave to amend the grounds of appeal, and the application for leave to adduce fresh evidence falls as a consequence.