R v WCU

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 those offences. This prohibition applies unless waived or lifted in accordance with section 3 of the Act.

On 1 July 2024 in the Crown Court at Nottingham before His Honour Judge Auty KC the appellant, then aged 50, changed his pleas to guilty to 22 offences against three victims to whom we shall refer as V1, V2 and V3.

In relation to V1, the appellant pleaded guilty to three counts of rape (counts 1, 2 and 3) involving rape on at least 12 occasions, two counts of assault of a child under 13 by penetration, contrary to section 6 of the Sexual Offences Act 2003 (counts 4 and 5) involving offences on at least 11 occasions and one count of sexual activity with a child family member, contrary to section 2 of the 2003 Act (count 7) involving offences on at least 10 occasions.

In relation to V2 the appellant pleaded guilty to six counts of rape (counts 9, 10, 11, 12, 17 and 18) involving rape on at least 24 occasions, both vaginal and oral, two counts of assault of a child under 13 by penetration (counts 13 and 14) involving offences on at least six occasions and one count of sexual activity with a child family member (count 18).

In relation to V3 the appellant pleaded guilty to four counts of rape (counts 20, 21, 22 and 23) involving rape on at least 17 occasions, two counts of assault of a child under 13 by penetration (counts 24 and 25) involving offences on at least 11 occasions and one count of sexual activity with a child family member (count 27) involving offences on at least three occasions.

On 20 November 2024 before the same court the appellant was sentenced pursuant to section 279 of the Sentencing Act 2020 to three concurrent extended sentences of 33 years on counts 2, 10 and 21, comprising a custodial term of 30 years and an extended licence period of three years. That sentence was imposed on three counts involving the rape of each of the three victims. All other sentences were imposed to run concurrently. The appellant appeals against sentence with the leave of the single judge.

The only other sentences we need to mention specifically in this judgment are the concurrent special custodial sentences imposed on counts 4, 5, 13, 14, 24 and 25. They comprise custodial terms of either eight or 10 years and an extended licence period in each case of one year. Section 278(1) of the 2020 Act provides that a special custodial sentence may not be imposed in a case where the court imposes an extended sentence (see R v Powell [2018] EWCA Crim 1074, [2018] 2 Cr.App.R (S) 34). We deal with the need to correct those sentences at the end of this judgment.

The three victims were the step-daughters of the appellant. The offending had come to light on 6 February 2023 when V1 told a teacher at her school that she had been sexually abused by her step-father and that teacher informed the police.

Police officers began an investigation. V1 told the police that the appellant had begun touching her under her clothing and had put his fingers into her vagina. The first time that had happened was before she had started secondary school and it had continued for about seven years. The appellant said to V1 that it was their "little secret" and if she let anyone know about it they would both get told off. V1 said that the appellant had been very controlling and would use physical punishment for minor misbehaviour. When she was about 11 years old she would be woken up by the appellant early in the morning before anyone else was up and told to go and lie down downstairs where the appellant would penetrate her vagina with his fingers. She would cry about what was happening to her but he continued. V1 then learned that the appellant had been sexually abusing her sister, V2. V1 told their mother who simply pulled a face and said nothing. The sexual abuse did stop for around a month but then it started again.

Counts 1 and 2 occurred when the appellant raped V1 by putting his fingers inside her vagina. She told the appellant to stop and that it had been hurting her but the appellant said she would "get used to it". Count 3 related to an incident when the appellant anally raped V1. She told the appellant to "get it out" but he only stopped when her voice got louder. The victim was around 15 to 16 years old at the time. V1 said that she used to self-harm because of this abuse.

V2 was interviewed by the police. She gave a similar account in relation to the appellant's controlling behaviour of the household. She told the police that she had been about 12 years old when the sexual abuse had begun. The appellant regularly digitally penetrated V2's vagina and although she told the appellant to stop he would continue.

When V2 was about 14 she was woken up by the appellant around 3.00 am to 4.00 am and told to go downstairs. The appellant took her clothes off and put his penis into her vagina (count 9). Although V2 cried the appellant did not stop. This then happened on a regular basis (count 10). On another occasion V2 tried to ignore the appellant when he had come into her room at 3.00 am. He punched her on the back of the head and called her a "bitch". Counts 17 and 18 had occurred while the appellant had been on bail. The sexual abuse carried on despite the bail conditions. The offending included both vaginal rape and digital penetration of the complainant's vagina. On one occasion the complainant had been on her period but the appellant continued regardless before pulling his penis out. Counts 11 and 12 involved multiple rapes when the appellant forced V2 to perform oral sex on him by forcing her head down onto his penis and holding it there. V2 said the abuse was worse when it took place at the appellant's caravan because no one else was around.

V3 went to the police station on 22 September 2023 and made a complaint against the appellant. She too had been told by the appellant to keep the offending a secret.

V3 said that the appellant had put his penis inside her vagina when they were in the living room of the family home. She said that she had been eight when the appellant had first penetrated her vagina with his fingers. He asked her if she had enjoyed it. Afterwards she cried. There were at least 10 other offences of this nature. V3 said that when she was 13 the appellant raped her by placing his penis into her vagina (count 20). She remembered saying to the appellant that someone was coming down the stairs to try to get him to stop. The appellant then ejaculated. The rapes occurred on several occasions (count 21). Counts 22 and 23 related to occasions when the appellant raped V3 vaginally and made her suck his penis. She had been 16 and felt sick afterwards. Counts 24 and 25 related to occasions when the appellant placed his fingers into her vagina. V3 contracted herpes as a result of the offending.

The appellant was arrested. In interview he denied all of the offences in relation to all three victims.

The appellant was aged 50 at sentence. He had 18 convictions for 193 unrelated offences spanning from February 1986 to July 2006. The judge made it plain that these offences made no difference to the sentences he passed.

We have read the pre-sentence report. The author said that the appellant tried to minimise his offending. He demonstrated no real remorse for, or understanding of, the impact of his offending on the lives of the victims. His concern related primarily to the impact of the offending on himself. His actions were motivated by his own sexual needs and controlling abusive attitudes. The appellant accepted that he would have continued abusing his victims if he had not been arrested. Even then, when he was bailed, he breached the conditions of bail. He still had contact with and abused V2. He claimed that this was because she missed him and wanted to see him. The probation officer commented that the appellant was not accepting responsibility for his actions and demonstrated a severely distorted attitude.

We have read the very moving victim personal statements of V1, V2 and V3. They reveal the profound harm that they have suffered and continue to suffer. They describe the terrifying experiences they had to endure and the effects it has had on them, including low self-esteem, self-harm, suicidal ideation, being forced to run away from home, witnessing the impact of the offending on siblings, nightmares, flashbacks, panic attacks, trust issues and the effect on relationships. They describe the appellant's control of their lives, his cruelty towards them and the fear they felt about being in the same house.

In his sentencing remarks the judge said that a significant reason for the guilty pleas was the appellant's self-interest, but he recognised that the late guilty pleas had spared three victims the ordeal of having to give evidence and the additional harm that was likely to cause them. He therefore decided to allow credit for plea of 20 per cent.

The judge said that if the appellant had been convicted after trial then applying the decision of this court in R v AYO [2022] EWCA Crim 127, [2024] WLR 95, he would have received an overall custodial term significantly longer than 30 years. This was because of the number of offences of rape, the breach of trust within the family, the control, manipulation and cruelty which robbed the three victims of any real kind of life whilst it was going on and particularly any lives as children. The judge regarded this as an extreme example of such a case. He also explained why he considered the appellant to be dangerous and why an extended sentence should be imposed.

We are grateful to Mr Varley for his clear and succinct submissions, both written and oral on behalf of the appellant. He does not challenge the judge's decisions to treat the appellant as dangerous, to impose extended sentences and to impose three year licence extensions. He submitted that by implication the judge's sentence after trial would have been 37½ years. After allowing credit for plea of 20 per cent that figure was then reduced to 30 years. He submits that applying the principles laid down in AYO, this was not one of those exceptional cases which justified a sentence after trial exceeding 30 years and certainly not one of 37½ years. He does not criticise the other individual concurrent sentences passed, save of course for the legal error in relation to the special custodial sentences.

We refer to the decision in AYO and in particular to the principles which were set out by this court at paragraphs 23, 24, 53 and 75. It is well-established that sentences in excess of 30 years should only be passed in exceptional circumstances and a court must consider very carefully whether to impose a sentence after trial in excess of 30 years.

In our judgment the judge in this case did sufficiently identify factors which justified treating the present case as an exceptional one meriting a sentence after trial in excess of 30 years. There were, for example, three victims. According to the guilty pleas there were at least 53 rapes and at least 28 offences under section 6 of the 2003 Act. But, just as important, there were the other factors to which the judge referred and which are not the subject of criticism, in particular the control, manipulation and cruelty which governed the conditions in which each of these three victims had to live for such a long period.

However, we conclude that the judge was wrong to proceed on the basis that a sentence at trial was as great as 37½ years. In our judgment, having regard to the principles in Part 4 of the Sentencing Act 2020 and the Definitive Guideline, the appropriate sentence after trial, in the particular circumstances of this case, was 33 years.

The matter does not end there. Although Mr Varley concentrated his fire on one aspect of the judge's reasoning, namely the decision to treat the offending as exceptional so as to justify a custodial sentence after trial longer than 30 years, the issue before the court is whether the end result of the sentences passed by the judge was manifestly excessive. That question needs to be looked at as a whole and not compartmentalised into separate subjects treated in isolation. We would add that in his very well-judged submissions on behalf of the appellant Mr Varley accepted that point.

We note that there was no real mitigation available to the appellant. The pre-sentence report does not reveal anything which would have assisted him in that regard.

It is necessary to return to the guilty pleas. They were entered on the day the trial was listed to begin. Mr Varley says that the Crown was notified a week beforehand that pleas were likely to be forthcoming and on the Friday before the trial they were formally notified. He submits that this was important because it meant that the victims could be told about this before that weekend. However, we also note the judge had previously said in his remarks that the appellant could have indicated his guilty pleas at a much earlier stage so as to spare the victims months of anguish. That too is a factor which has to be borne in mind when assessing credit for plea.

Mr Varley says that the appellant was entitled to credit for his pleas "in something of the order of more than 10 per cent" which was somewhat ambiguous. He subsequently said:

We do not accept that the judge made any deduction for remorse. There was nothing in the judge's remarks to suggest that. The pre-sentence report explicitly said that the appellant did not show real remorse and we see no reason to question that assessment on the material before us.

The definitive guideline: "Reduction in sentence for a guilty plea" lays down appropriate credit for plea at different stages of the trial process which take into account the benefits of an acceptance of guilt, including reducing the impact of crime on victims and saving victims from having to testify. The earlier the guilty plea, the greater those benefits and the greater the amount of credit for plea. The judge had previously said in his remarks that the appellant could have chosen in this case to spare the victims months of anguish. There was no suggestion that there was some legitimate reason for the appellant being unable to accept his guilt at an earlier stage.

The guideline plainly states that one-third credit for plea is appropriate if given at the first hearing at which a plea or indication of plea is sought, which in this case would have been the Magistrates' Court (see R v Plaku [2021] EWCA Crim 568; [2021] 4 WLR 82). After that first stage the maximum credit for plea is 25 per cent. Here the judge allowed a figure close to that level. Ordinarily a plea on the first day of trial attracts a maximum credit for plea of 10 per cent. We do not see why the late indications given during the preceding week would have justified a credit of 20 per cent, although we accept that some flexibility around 10 per cent was appropriate in the circumstances of this case.

We bear all these matters in mind in order to do justice to the case as a whole. In our judgment the custodial term which should have been imposed on counts 2, 10 and 21 in the overall circumstances of this case, after allowing credit for the pleas, should have been 28 years rather than 30 years. We therefore quash the sentences on counts 2, 10 and 21 and substitute an extended sentence on each count with a custodial term of 28 years and an extended licence period of three years, making an overall sentence of 31 years combining those two elements.

We turn to the special custodial sentences which, as a matter of law, were wrongly imposed. We quash the sentence on count 4 and substitute a determinate sentence of eight years. We quash the sentence on count 5 and substitute a determinate sentence of 10 years. We quash the sentence on count 13 and substitute a determinate sentence of eight years. We quash the sentence on count 14 and substitute a determinate sentence of 10 years. We quash the sentence on count 24 and substitute a determinate sentence of eight years. We quash the sentence on count 25 and substitute a determinate sentence of eight years.

All of the sentences will run concurrently, both those to which we have expressly referred and those other sentences imposed by the Crown Court and which remain undisturbed.

The overall effect of our decision is that the appellant will serve an extended sentence of 31 years, comprising a custodial term of 28 years and an extended licence period of 3 years.

Lastly, we refer to the victim surcharge. In the transcript of the sentencing remarks the judge said that the surcharge applied in this case. It did not because the dates of some of the offending pre-dated the commencement of the relevant legislation. We confirm for the avoidance of doubt that there is no victim surcharge applicable in this case.

To this extent only the appeal is allowed.