R v PDN

The provisions of the Sexual Offences (Amendment) Act 1992 apply to this offence. 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. For the avoidance of doubt, we do not waive or lift the prohibition in this case.

His Majesty's Attorney General seeks leave to refer a sentence which he regards as unduly lenient. The sentence was imposed by Ms Recorder Penelope Stanistreet-Keen in the Crown Court at Nottingham after the Offender had been convicted of two very serious sexual offences against young children. The Recorder was the trial judge.

On count 1, which was an offence of rape of a child under the age of 13, upon his conviction the Offender was sentenced to 13 years' imprisonment with a 1-year additional licence. On count 2, which was an offence of assault of a child under 13 by penetration, upon his conviction the Offender was sentenced to 11 years' imprisonment concurrent. The total sentence was therefore one of 14 years, being a 13-year custodial term and 1-year additional licence. Other ancillary orders were made which we do not need to deal with in any detail.

The facts may be very shortly stated. The Offender was the biological father of the two victims, A and B. He had a history of drug addiction and had separated from their mother. She allowed him to have contact with A and B on the condition he took drug tests regularly, which she administered. Prior to the events that gave rise to the Offender's prosecution he had been thought of as a good father, albeit one who had a significant drug and alcohol problem.

In February 2022 contact between the Offender and A and B appeared to have been successful and it built up to them staying overnight with him. As of February 2022, A was aged 3 and B was aged 5.

In August 2022, A and B were returned early from a planned contact visit with their father. They were distressed and revealed to their mother sexual abuse. A said that the offender had anally raped him. B said that the Offender had digitally penetrated his anus. At that point A was aged 4 and B was aged 5.

In addition to the evidence of the victims, there was medical evidence from a forensic paediatric physician who found injuries to the anus of each boy that was consistent with their accounts of sexual abuse.

The Offender was arrested and interviewed. He was 35 when sentence was passed. He had previous convictions but none for sexual offending and none of anything like the same seriousness as the present offences. In interview he denied any sexual misconduct, and he has continued to deny sexual misconduct during and since his trial.

The Recorder sentenced without having the benefit of a pre-sentence report. She had presided over the trial at which he was convicted, as well as a previous trial that had collapsed before reaching a conclusion. The Recorder should have obtained a report, if only to deal with the issue of dangerousness. We now have a report prepared for the purposes of this appeal.

There was a victim personal statement from the victims’ mother which catalogued the severe impact that the offending had had on each child. She described her own guilt at failing to keep A and B safe. She described how A and B's behaviour had changed. They used to be smiley, happy, positive children who loved each other. Following the abuse, B started to show hatred to A. They became violent and unpredictable. They soiled their beds. A soiled himself at school. A lost his confidence and has become shy and withdrawn. He had nightmares and trouble sleeping. They cried when their mother used the word "dad" intending to refer to her own father. Both children suffer from stomach aches. B suffers what his mother described as "the extreme psychological impact of hearing his brother being raped". He feels guilty for not protecting him. If A cries, B's gets very emotional. Both children are having counselling, which will go on for the foreseeable future. She described the impact as lifelong. She described her whole world as having fallen apart. She fears leaving her children alone. She said that they are a good family "who have been destroyed by one man". She is beside herself with grief, guilt and pain.

There was and is no dispute about categorisation. The Recorder placed each offence in category A for culpability because of the gross breach of trust, and category 2 for harm because of the evidence of psychological harm and the particular vulnerability of the victims because of their youth and personal circumstances. Aggravating features that were present were the committing of each offence in the presence of the other child and that the abuse happened in the children's own homes. In addition, the offending happened when the Offender slipped back into the drug addiction with which he had struggled for years, and the offending happened when he was under the influence of drugs. There was very limited mitigation. The best that could be said was that he had no similar previous convictions or convictions of similar seriousness.

On count 1 therefore, the starting point was 13 years, with a category range of 11 to 17 years. On count 2, the starting point was 11 years, with a category range of 7 to 15 years.

The Recorder declined to make a finding of dangerousness. She said:

Having set out the background, the Recorder decided, as she put it, "to aggregate the sentence on count 1". She then said that there was no reason to depart from the starting point of 13 years because:

On behalf of the Attorney General Mr Richardson advances two short submissions:

On behalf of the Offender Mr James-Moore, who represented the Offender in the court below as he has before us, submits that the aggregate sentence passed by the Recorder was within the range of sentences that was reasonably available to her and was not unduly lenient. He submits, as he submitted to the Recorder, that the Offender's children could be protected by a restraining order and that the risk to any other children was tenuous.

We accept the Attorney-General's first submission. Viewing count 1 in isolation for a moment, we accept that many judges would have gone up from the starting point of 13 years to reflect the seriousness of the offence, its consequences and the Offender's culpability. However, we are unable to conclude that the judge's decision not to move up or down from the starting point was one that was not open to her when count 1 is viewed in isolation. That said, count 1 cannot be viewed solely in isolation as the Recorder also had to sentence the Offender in respect of the serious additional criminality involved in count 2. Quite apart from being a separate and discrete offence, it was committed against a second victim, so that the lives of two children have been utterly blighted, not one. It is plain from her sentencing remarks that the Recorder neither weighted the sentence on count 1 nor imposed a separate and consecutive sentence on count 2. The gravity of the offence charged under count 2 is obvious and is marked by the fact that the starting point when count 2 was viewed in isolation would be 11 years and the bottom of the category range would have been 7 years.

We are therefore driven to the conclusion that the aggregate custodial sentence of 13 years for the two offences was not merely lenient but unduly lenient and well outside the range of aggregate sentences that was properly open to the Recorder.

The Attorney General submits that a custodial sentence of 17 years overall was the least sentence that could properly be imposed in aggregate for these offences, which he characterised as being an upward adjustment of 4 years to count 1. We prefer to characterise it as the lowest appropriate sentence for the two offences taken together rather than simply treating the 13 years on count 1 as if it were a sort of fixed point. For the avoidance of any doubt, we take the view that the Recorder could have passed an aggregate sentence with a custodial element significantly in excess of 17 years without any fear of the sentence being regarded as excessive.

The question then arises whether this should be achieved by imposition of concurrent sentences, with the sentence on count 1 being the lead sentence that is intended to reflect the Offender's overall criminality, or by consecutive sentences. Either route is possible. We return to this after dealing with the Attorney-General's second submission.

Turning to the Attorney-General's second submission, despite the fact that she had to consider dangerousness, the Recorder did not obtain a report as she should have done. We have the benefit of the pre-appeal report, which rightly identifies the risk to children other than the victims with whom the Offender may come into contact upon or after his release. The report expresses the opinion that:

We accept that opinion as well founded. It may be said that the risk is not quantifiable, but what is undeniable is that if the risk were to eventuate, the consequences for any future victim would in all probability be extremely severe.

In our judgment, in this case, based upon the facts of these offences and the contents of the pre-appeal report, there is a significant on-going risk of serious harm caused to any young children with whom he comes into contact. We do not consider that this risk is sufficiently answered by either the passage of time or the requirements of the Sex Offenders Register. The Offender will inevitably be released from prison and will be in a position to form relationships with women who have young children and/or with whom he may have children himself. In our judgment an extended licence period of 4 years is called for.

We therefore give leave, quash the sentence imposed on count 1 and substitute an extended sentence of 21 years, comprising a custodial term of 17 years with an extended licence period of 4 years. The sentence on count 2 will remain as before.