R v Adnan Khan

MR JUSTICE CONSTABLE: The provisions of the Sexual Offences (Amendment) Act 1992 apply to this offence. 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 that offence. This prohibition applies unless waived or lifted in accordance with section 3 of the Act.

The appellant appeals with leave of the single judge against a 15-month custodial sentence imposed following the appellant's plea of guilty at the plea and trial preparation hearing to one offence of harassment contrary to section 2 of the Protection from Harassment Act 1997 and two counts of sexual communication with a child, contrary to section 15A(1) and (3) of the Sexual Offences Act 2003.

The appellant also appeals against the imposition of a Sexual Harm Prevention Order for a period of 20 years.

The offending occurred on 9 March 2021 and took place over the course of about half an hour. The defendant targeted female pupils making their way to a secondary school in Fenham, Newcastle. It was their first day back after Covid-related closures.

The first pupil approached by the appellant was an 18-year-old who we shall refer to as C1. As C1 waited at Wingrove Road the appellant stopped his vehicle alongside her and asked her for her name. C1 told the appellant she was still in school and moved around the corner to get away from him. The appellant reversed back alongside C1 and asked again for her name. He told her that he would take her to school. C1 told him "no" and the appellant drove away, leaving her shaking.

Approximately half a mile away two other complainants were approached, C2 and C3. They were both aged 16 and were also making their way to school with a third female pupil. The appellant again pulled alongside them and was heard to shout: "Girl in the middle, come here, come here." The girls ignored the appellant and reported the incident upon their arrival at school.

The third incident took place shortly after on a nearby road. C4 (aged 15) along with C5 and 6C (both aged 13) were walking to school when the appellant pulled up alongside them. He repeatedly and aggressively shouted at them to get into his vehicle. When they ignored him and hurried towards the school the appellant drove away. All three girls contacted a parent after the appellant left.

A mile away, the appellant then approached C7 and C8 (both aged 16). Thinking he needed directions, C8 moved towards the car. The appellant asked C8 how long she had been wearing braces. Realising he did not need assistance, C8 then moved away. The appellant followed C8 and a friend with her, repeatedly shouting towards them. C7 took out her mobile phone and told the appellant three times that she was going to call the police. Even this did not deter the appellant who continued to harass the girls before eventually driving away.

The final incident occurred when C9 was approached. C9 was aged 14 and C10 then aged 13. They were walking to school along with some male pupils. The appellant pulled up his car alongside them and began talking to C9 and C10, referring to them as gorgeous and beautiful. When one of the male pupils intervened and asked the appellant to leave he responded by saying he was going to "shag" the mothers of all the boys. He then went back to C9 and C10 and told the two girls he was going to "shag" them and make them perform oral sex on the boys. He left when C9 said she was going to call the police.

The first pupil approached by the defendant in her victim impact statement had said amongst other things that she had decided to walk to school rather than her usual pattern of catching the bus.

The police were contacted as a result of the incidents. The appellant's registration number was obtained because part of this incident had been filmed. He was arrested and in interview he blamed the children, saying that they had thrown a drink over his car. He denied having approached them or invited any of them to get into his car and denied initially any sexual conversation. Later the appellant accepted that he said he would "shag" the boys' mothers claiming it was, in his words, "a turn of phrase". He went on to suggest that it was the children who were making racially motivated false complaints against him. The appellant was interviewed two years later, maintaining his account at that stage and went on to blame one of the boys for damaging his car.

The judge took the sexual communication with a child as the lead offence, sentencing the harassment count concurrently. Contrary to the position that had been agreed between counsel for the prosecution and the defence, who thought there was neither raised culpability or raised harm, and that the appropriate category was B2, the judge categorised the offending as A1 in accordance with the relevant sentencing guideline. On the basis of the victim impact statements the judge had concluded that each of the complainants was significantly and adversely impacted by the harm caused and the categorisation of culpability appeared to reflect a finding that the appellant had gone out of his way to find the children going en route to school. Category 1 has a starting point of 18 months within a range of nine months to two years. The judge identified a sentence of 21 months that would have been imposed before credit for guilty plea.

In relation to the harassment, the judge identified high culpability on the basis of the persistence and the prolonged period which caused distress and harm to the children involved. Category A1 has a starting point of 12 weeks within a range of a high level community order to 26 weeks' custody. The judge identified a sentence of 20 weeks' imprisonment which he imposed concurrently, taking specific account of the factor of delay. He reduced the sentence he would otherwise have given on account of that delay by making the sentences concurrent rather than consecutive.

Rounding down after the application of 25 per cent reduction for the guilty plea, the sentence of 15 months was imposed. The judge considered it was necessary to impose a Sexual Harm Prevention Order and he identified a duration of 20 years, stating that the reason for that was in part because the appellant had a child.

In Miss Hirst's helpful oral submission she advanced three grounds for appealing the sentence and two grounds in respect of the Sexual Harm Prevention Order.

The three grounds in relation to the sentence itself were as follows. First, the judge was wrong to take the sexual communication offending as the lead offence. Secondly, the judge was wrong to categorise the offending as A1. Thirdly, the judge was wrong to aggravate the offending by reference to the fact that it took place on the first day of school following the lifting of the Covid restrictions.

As to the second limb of the appeal relating to the SHPO, it was argued that, first, that it was unnecessary for such an order to be made at all, and secondly, if it was to be made that the 20-year duration was excessive.

We do not agree that the judge was not entitled to take the sexual communication offending as the lead offence, providing of course that the overall sentence for the overall offending was not manifestly excessive. In the context of the conduct as a whole, and in the context of the sentencing guideline and the maximum allowable sentence for the respective offences of sexual communication with a child and a section 2 harassment offence, the judge clearly did not err in principle in concluding that the sexual communications offence would give rise to a greater sentence and could be considered as the lead offence where the other offending was then to be dealt with by way of a concurrent sentence.

Turning to categorisation, the judge was in our view fully entitled on the basis of the victim impact statements to consider that the harm fell into Category 1. The judge described how he had heard directly from one of the victims who, even four years later, had taken the trouble and time to attend the court and to read her own victim impact statement to the court. That of itself is a telling sign of the extent to which she felt she had been impacted by the appellant's conduct. She had described in her victim impact statement that she had been worried in public, was very wary about going to school at all, she was prevented from visiting her best friend as often as she would have liked to have done because her best friend lived in the area where this conduct took place, she was especially wary in the evenings and had stopped going out. She also fretted about what might have happened to her had she or one of her friends got into the car. She described the negative impact on this as "long lasting".

The other statement that the judge took account of was in similar terms. It talked about worrying about being in public places alone and specifically stated that she was no longer able to walk to school and so did not attend school on occasions when her mother was unable to have given her a lift. She was exceptionally worried about walking along the same route. On the basis of that evidence, the judge was clearly entitled to conclude that the harm was significant.

Miss Hirst's tenacious submissions were, it must be said, more than meritorious when directed at culpability. None of the culpability A factors were present and none were identified by the judge. On the evidence before the judge it might have been more appropriate for the judge to have categorised culpability as a B culpability case, as had been submitted to him by the prosecution and the defence. That would have led to a starting point of one year within a range of high level community order to 18 months' imprisonment. We also agree with Miss Hirst's submission that the fact that the offending occurred upon the lifting of the lockdown restrictions was not itself an aggravating feature and it is not easy to discern from the sentencing remarks why the judge had thought that to be the case.

However, whilst both of those submissions have merit, Mr Khan still fell to be sentenced for two counts of sexual communication with a child, each, as we have indicated, has a starting point of one year, as well as the harassment count which would in its own right have merited a sentence of three or four months.

Taking account of totality therefore, a total sentence of 21 months prior to credit for plea is not manifestly excessive even if the judge had categorised the sexual communication with a child offence as 1B.

Turning to the SHPO, in light of the conviction we do not consider it is appropriate to interfere with the judge's assessment that the imposition of an SHPO for some duration was appropriate. We do however accept Miss Hirst's submission that the duration of 20-years was excessive and could not be justified by the mere fact that the appellant has a young child.

We therefore substitute a period of 20 years for the period of 10 years and we also confirm that in accordance with section 82 of the Sexual Offences Act 2003 the notification period is also to be one of 10 years.

The appeal is therefore allowed, in part only, limited to the reduction in the duration of the SHPO.