R v Seamus MacFhearchair

On 18 October 2024 in the Crown Court at Snaresbrook, the appellant (then aged 36) was sentenced to imprisonment for life for the offence of attempting to sexually assault by penetration, contrary to s.2 Sexual Offences Act 2003 and s.1(1) Criminal Attempts Act 1981, an offence within Schedule 19 of the Sentencing Act 2020: Count 3 of the indictment. The sentence was a discretionary ‘dangerousness’ life sentence, pursuant to s.285 Sentencing Act 2020. On the same occasion he was sentenced for three other offences on the indictment. On Count 1: stalking involving serious alarm or distress, contrary to s.4A Protection from Harassment Act 1997, 27 months' imprisonment. On Count 2: sexual assault, contrary to s.3 Sexual Offences Act 2003, no separate penalty. On count 4, common assault, contrary to s.39 Criminal Justice Act 1988, no separate penalty.

With the leave of the single judge, the appellant contends that the imposition of a discretionary life sentence was manifestly excessive or wrong in principle.

The provisions of the Sexual Offences (Amendment) Act 1992 apply to the offences in Counts 2 and 3. 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 the offence. This prohibition applies unless waived or lifted in accordance with section 3 of the Act.

At 7.40 p.m. on 1 August 2023, a young woman (C1) was walking home along the High Street in London E17. She stopped at a shop to order some food. The appellant approached her. She ignored what he said and carried on. Her route included Hoe Street. She continued walking to her home address but noticed that he was still following her. She turned back on herself to try and evade him, but saw that he was still following her. She confronted the appellant and asked why he was following her. He said that he was not, and that he was from Stratford and was lost. She told him to stop following her. By chance another woman pushing a pram heard this and pretended that she knew C1. The two women walked away from C1's home address and subsequently separated. C1 checked behind her and could not see the appellant. She started to walk home. When she arrived a short while later, she noticed him walking past her home address. These are the essential facts of Count 1.

The essential facts of Counts 2, 3 and 4 begin a few hours later, at 10.30 p.m. A young woman (C2) exited from Walthamstow Central train station and walked down an alleyway onto the same High Street in E17. She turned from the High Street into Hoe Street. As she was walking north, she noticed a man following her. It was the appellant. She kept walking in the same direction until she reached Forest Hill. Fearing that the man was following her, she rang her boyfriend. She remained on her telephone as she made her journey home. The appellant continued to follow her. She then felt him hit her bottom over her dress (Count 2). He pushed her onto the ground and then started to punch her to the head (Count 4). She tried to fight him off but he used his left hand to lift her skirt, placed his right hand up her skirt and put his hand on her vagina. He said words to the effect of "This is what I like". He felt around the edge of her underwear line and tried to get to her vagina. He did not achieve that because she was wearing bike shorts under her skirt (Count 3). Someone nearby in his home heard screaming and cries for help. He saw the appellant pinning C2 to the ground. He leaned out of the window and shouted at him. The appellant looked up at him and ran away. C2's boyfriend was still on the phone and heard her screaming and shouting. He ran out, called 999, and found C2 in tears.

The appellant was arrested on 5 August 2023. He denied the offences. C1 was able to identify him, but C2 was not able to do so. He ultimately pleaded guilty at the plea and trial preparation hearing.

The victim personal statements in each case reflected how the two women had been traumatised by the incident and how it had affected their feelings of personal safety. C1 had made changes to her route to work and was always looking over her shoulder. Knowing about the sexual attack on C2, she was mentally affected by knowing how close she was to being attacked in such a way. C2 stated that she felt exposed and vulnerable; an object waiting to be claimed.

The appellant had a very bad record of sexual offending and offences motivated by sex. Overall he had convictions for 100 offences between February 2007 and April 2021. These included indecent assault on a female (2007); making indecent photographs or pseudo-photographs of children (2008); harassment, improper use of a public electronic communications network and sending an article of an indecent or offensive nature (2009); three breaches of Sexual Offences Prevention Orders (‘SOPO’) in 2011; seven further breaches of SOPOs (2012); causing or inciting a child aged between 13 and 16 years to engage in sexual activity and a further breach of a SOPO (2013); seven offences of improper use of electronic communications and a further breach of a SOPO (2014); common assault (2014 and 2015); seven offences of harassment; three breaches of a SOPO (2016); six breaches of a SOPO and two offences of harassment (2017); failure to comply with notification requirements (2018); and a further breach of a SOPO/SHPO (2021). The penalties included immediate and suspended custodial terms; and there had been breaches of suspended sentences.

The author of the pre-sentence report stated that the appellant was polite and co-operative throughout the interview and showed an insight into his offending. However he had been drinking and remembered little about the incident. He did not recall trying to initiate conversation with C1 or walking past her or standing by her house. He acknowledged that by following her, it was highly likely that he would have gone on to assault her sexually if the opportunity had presented. As to C2, the appellant was having intrusive sexual thoughts and followed her for no other reason than that she was there alone. He was grateful to the man who had shouted, as he did not know how far he would have gone. He accepted that he could be impulsive and have difficulties in controlling his temper; and that his misuse of alcohol and drugs led him to act on his sexual impulses. The author of the report stated that he appeared extremely remorseful.

As to the records of previous offending, the author of the report noted the high level of his sexual preoccupation and the observation of his previous probation officer, in the period of his licence after release in 2018, that his offending was predatory and that he actively sought opportunities to offend, including by sexual harassment by telephone. The report concluded that he posed a high risk of harm to children, namely female post-pubescent girls and that there were grounds to be extremely concerned about that risk.

The Judge had also ordered the report of a psychologist and a psychiatrist. Dr Jenny Hopton, Chartered Forensic Psychologist, produced a report dated 30 September 2024. As to background history, she recorded that the appellant had been sexually abused and had developed highly sexualised behaviour in his childhood and had a long history of substance misuse involving alcohol and drugs. Dr Hopton recorded his account of making inappropriate phone calls in his teenage years, during which he would speak of his rape fantasies. He had been diagnosed with ADHD when aged 11 and with complex PTSD in 2015. Dr Hopton noted evidence of attitudes that supported or condoned sexual violence relating to his sexual objectification of women. In respect of the subject offences, he said in each case the fact that the victim was wearing a skirt "finalised it" in his decision to commit the offence.

Dr Hopton conclude that he currently presented a high risk of future sexual offending and that when under the influence of substances he presented an imminent risk of sexual and general violence, the nature of which could cause serious physical and psychological harm. His victims were likely to be lone females whom he considered to be vulnerable. His offending had been chronic and persistent over his adult life. On the positive side, he appeared motivated to engage in treatment and was realistic that the work was likely to be lengthy and difficult for him.

In an addendum report which postdated the sentencing hearing and gave rise to an unsuccessful application for the Judge to vary her sentencing decision, Dr Hopton commented further on the appellant's capacity to engage in treatment and its likely effectiveness in reducing his risk of reoffending. She reaffirmed her opinion that previous treatment had been of insufficient duration to manage his needs in the long term. She continued: "The length of treatment at HMP Grendon is between 18-36 months, should he be able to make sufficient treatment gains, this treatment is likely to address his early trauma underpinning his risk. The durability of change depends on [his] ongoing commitment to therapy and his ability to apply learned skills in his life. Long-term durability of change will likely require ongoing support and periodic reassessment, as [his] deep-seated beliefs and trauma history present enduring challenges that necessitate continued therapeutic engagement and support."

The report of Dr Gary Duffield, Consultant Forensic Psychiatrist, recorded that the appellant gave a full and frank account of his sexual offending and did not seek to minimise or justify any aspect. Dr Duffield described him as a recidivist sex offender whose offending appeared compulsive and to be associated with the disinhibition of alcohol intoxication. There was evidence of an escalation in his behaviour from indecent phone calls to the current offences of sexual assault. He had admitted that, if he had had the opportunity, it was highly likely that he would have gone on further to sexually assault his victim and that his sexual fantasies had become increasingly violent, including bondage and rape.

Dr Duffield's opinion was that the appellant was not suffering from any mental disorder. He found some evidence of traits commonly seen in those with a diagnosis of emotionally unstable personality disorder, but not sufficient to make such a diagnosis. He concluded that, if he did not properly address his sexual offending and alcohol addiction, he was likely to present a significant risk of further offending.

In her sentencing remarks, the Judge stated that it was clear that throughout his adult life the appellant had been enthralled to deep-seated and all too often uncontrollable violent sexual urges. As to the detail of his previous offending, the Judge gave some examples. In December 1996, whilst under the influence of alcohol, he followed a young woman along a lane. He approached her, asked her about the colour of her knickers, then tried to stop her walking away and then tried to pull up her skirt. He grabbed hold of both her arms but she managed to escape. Thereafter his offending was linked almost exclusively to the violent sexual fantasies that he had experienced since a very young age. These included convictions for possession of indecent images of children; and on numerous occasions using the telephone network to contact women to inflict fear by sharing his sexual fantasies. He had been made subject to a SOPO and then an SHPO, but had continually breached each. Between December 2012 and March 2013, he was regularly making sexual threats to a child. In 2014 he followed a young woman off the train and was seen by her to be rubbing his groin. She was terrified. She thought that she had lost him but shortly thereafter saw him running at her. She called friends who scared him off, but not before she was terrified that she might have been raped.

The Judge continued that, having been thwarted by the escape of C1, the appellant continued to prowl the streets of Walthamstow searching for the next victim who fitted his desired profile, which was essentially a young woman wearing a short skirt. The Judge gave him the opportunity to give evidence of any other reason why he was out and about Walthamstow that evening.

Turning to the issue of dangerousness, the Judge concluded that from all the evidence the appellant posed a serious, indeed "almost inevitable", risk of causing serious harm to women by the commission of further specified offences. There is rightly no appeal from that conclusion of dangerousness.

In circumstances where (i) Count 3 was an offence which fell within Schedule 19 of the Sentencing Act; (ii) the Court had made the finding of dangerousness; (iii) the appellant was not under 21; and (iv) the offence was committed on or after 4 April 2005, the Judge duly considered the provisions of s.285 Sentencing Act and the associated guidance of the Court of Appeal in Attorney General's Reference No 27 of 2013 (R v Burinskas) [2014] EWCA Crim 334; [2014] 2 Cr. App. R.(S.) 45.

By s. 285(3):

As held in Burinskas at [22], the question posed by s.285(3) requires consideration of: (i) the seriousness of the offence itself, on its own or with other offences associated with it; (ii) the defendant's previous convictions; (iii) the level of danger to the public posed by the defendant and whether there is a reliable estimate of the length of time he will remain a danger; and (iv) the available alternative sentences. The Court in reaffirmed that, under this provision, a life sentence remains a sentence of last resort. At [43] the Court set out a suggested order in which a judge should approach sentencing in a case of this type. In the event of a finding of dangerousness, the next step was to consider the questions posed by s.285(3), as elaborated in Burinskas at [22].

The Judge duly considered these questions in turn. As to the seriousness of the Schedule 19 offence and the associated offences committed that night, the Judge concluded that they were extremely serious. The appellant had been on the prowl in Walthamstow that night looking to find a woman he could sexually assault. His first intended victim had only escaped by virtue of the intervention of the woman with her pram. That had not deterred him. He had then found and assaulted the second victim. The Judge had no doubt that, but for her particular clothing that night and the intervention of the man, the assault on her would have continued.

As to the appellant's previous convictions, nearly all of them revealed an ongoing interest in sexualised offending against women. Even when they were not specifically sexual offences, they were clearly motivated by his sexual animus towards women.

As to the level of danger and whether there was a reliable estimate of the length of time he would remain a danger, the Judge concluded that on the evidence and expert opinion provided it was impossible to say when, if ever, the appellant would cease to pose a serious risk to women. Neither prison sentences nor courses in the community had stopped his offending for any appreciable length of time; and indeed the gravity of the offending had worsened. On the basis of the pre-sentence report and the expert reports, the appellant posed an imminent risk of further sexual offending "which could well escalate even further to violent rape, given the nature of your recurrent and persistent violent sexual fantasies". Given how firmly and long those fantasies had been ingrained, they might never be a time when he ceased to pose such a risk, unless physical infirmity prevented him from doing so. The risk must be subject to long term management "far beyond anything that even an extended sentence can provide".

The Judge accordingly concluded that a life sentence must be imposed in respect of Count 1. This required her to set a minimum term to be served for that offence; but the length of such term to take account of the totality of the offending on all Counts. This required identification of the determinate sentence which would otherwise have been imposed on Count 3; and then subject to a reduction of two-thirds and for time spent on remand, in accordance with s. 323 Sentencing Act.

The appellant rightly does not challenge the minimum term, but we should set out how it was reached. By reference to the sentencing guideline for s.2 Sexual Offences Act, the Judge concluded that the culpability was in category A because of the significant degree of planning: "Your purpose on being in Walthamstow that night was to identify and target lone females who fit your desired type." As to harm, this was category 2 because of the severe psychological harm which appeared from the evidence of C2; and because of the physical violence which went beyond that which was inherent in the offence. This produced a starting point of 8 years' imprisonment and a category range of 5 to 13 years. To reflect that Count 2 was an offence of attempt, the Judge reduced that starting point to 7 years.

As to aggravating factors, the judge identified: the location and timing of events, night- time, and a woman on her own walking home; the influence of alcohol; and the appellant's previous convictions. There were no mitigation factors. He only expressed remorse when he was sober.

Taking account of all the other offences against C2 (Counts 2 and 4), but before considering the offending against C1, the appropriate determinate sentence before credit for the guilty plea would have been 11 years' imprisonment.

The stalking offence against C1 (Count 1) was high culpability (B) within the relevant guideline, because the targeting of a lone woman was conduct intended to maximise fear or distress. The harm was category 1, because of the very serious distress which had been caused to the victim. This produced a starting point of 2 years 6 months' imprisonment and a category range of 1-4 years. The aggravating factors were again the location and time of the offence and the previous convictions. There were no mitigating factors. Standing on its own, the appropriate sentence before credit for the guilty plea was 3 years' imprisonment. With 25% credit for the guilty plea, the resulting sentence was 27 months' imprisonment.

Returning to the minimum sentence on Count 3, the total of the actual and notional determinate sentences on the four Counts, before credit for plea, amounted to 14 years. Looked at in the round, the determinate sentence would have been 12 years' imprisonment. With 25% credit plea, the Judge, by an arithmetical slip, reduced the figure to 8, rather than 9, years' imprisonment. The necessary two-thirds reduction was stated to reduce this to 5 years and 3 months' imprisonment. The time spent on remand was stated to be 14 months. This all resulted in a minimum term of 4 years and 1 month's imprisonment. No separate penalty was imposed on Counts 2 and 4.

On behalf of the appellant, Mr Abhijit Desai submits that the Judge erred in her assessment that a life sentence was necessary. In reaching her conclusion she had erred in respect of each of the matters identified in Burinskas at [22].

As to the seriousness of the Schedule 19 lead offence (Count 3) and the associated offences, the Judge was wrong to conclude that there was significant planning. There was insufficient evidence to support the conclusion that the appellant was "on the prowl" in Walthamstow that evening. There was no evidence to suggest that he remained within the area searching for another victim between the time of the two incidents. No such inference could be drawn from the facts of the two incidents. They each occurred in a busy public area near the High Street. The women were not known to him. There was no indication that he had disguised himself or had selected a particular location to avoid detection. Both incidents were seen by members of the public who intervened. He was intoxicated.

Further, the Judge had been wrong to take account of the fact that the appellant had not taken the opportunity to give evidence as to his reason for being on the streets of Walthamstow that night. The burden of proof on all issues, including whether there was significant planning, remained on the Prosecution. Further, the report of Dr Hopton included the appellant's account of the offences which was inconsistent with significant planning: see paragraphs 4.77 and 4.78.

As to the stalking offence (Count 1), the Judge was wrong to conclude that the harm fell within category 1, and therefore took undue account of this offence when considering the overall question of the seriousness of the offending. The Prosecution itself, in its sentencing note, had placed the offence in culpability category C and on the boundaries of harm categories 1 and 2. The victim personal statement of C1 indicated some, but not very serious or significant, distress and changes to lifestyle.

As to aggravating factors, the Judge was also wrong to take account of the location of the offence. There was nothing particular about each location to increase culpability. Although the offences occurred near the victims' homes, this could not have been known to the appellant. The relevant sentencing guideline urged caution before aggravating an offence due to its location, suggesting that locations such as schools, hospitals and prisons as examples where this factor would apply.

As to previous convictions, the Judge was right to consider these to be an aggravating factor when considering dangerousness and when deciding on the notional determinate sentence. However these convictions did not support the conclusion that a life sentence was necessary. They did not reveal a history of very serious offending. The longest custodial sentence imposed had been 2 years in 2018, for failure to comply with notification requirements. The last contact offence was in 2007. The last attempted contact offence was in 2014. The appellant had not offended against women since January 2017; and the subject incidents had followed the end of a relationship and the death of his mother. The conviction in 2021 for breach of the SHPO had arisen as a result of him informing the police that he had downloaded TikTok and was not aware that it was social media.

As to the assessment of risk, Mr Desai points to the observations of the court in Burinskas when turning to the facts of one of the appeals before them, namely Smith. At [138] the Court stated: "The appellant plainly is dangerous. A powerful factor in the judge's deliberations was that he was not able to say with any certainty when the appellant would no longer be a danger. Whilst we understand the judge's concern, that factor cannot of itself lead to the conclusion that a life sentence is justified. The court must consider all the matters set out at paragraph 22 of this judgment, starting with the seriousness of the offence itself…We do not consider that the seriousness of the offence justified a life sentence …"

Mr Desai submits that the Judge placed too much weight on the conclusion that it could not be determined when the appellant would cease to be a danger; and was wrong to conclude that he would remain a risk unless and until he was physically infirm. Insufficient regard was given to the evidence of Dr Hopton that his risk factors could be addressed or managed: see, in particular, the opinion she expressed in the addendum report. All in all, the imposition of a life sentence was manifestly excessive and/or wrong in principle.

On behalf of the Crown, Ms Diana Wilson submits that the Judge carried out a careful sentencing exercise; made no errors of categorisation or as to relevant aggravating factors; identified and applied the correct questions for consideration under s.285; and reached the right conclusion for the reasons which she gave.

Challenge to the imposition of the sentence of last resort requires particularly close and careful review. Having done so, we are satisfied that the Judge's reasoning and conclusion were correct.

We take, in turn, the questions identified in Burinskas.

As to the seriousness of the Schedule 19 offence, and the associated offences committed by the appellant that night, we see no reason to interfere with the judge's assessment. The conclusion that he was out on the streets of Walthamstow that night looking for young female victims for sexual and associated physical assault is justified. Taken together with the history of his offending, the Judge correctly describe this as "significant planning" within the meaning of the guidelines. The very facts of the offences, together with the accounts which the appellant had given to the author of the pre-sentence report and to both Dr Hopton and Dr Duffield made that an appropriate inference. The various factors in the incidents to which Mr Desai refers provide no basis to weaken that inference. The Judge was entitled to note that the appellant had given no account to suggest any other reason for being on the streets that night. The account given to Dr Hopton was in no way inconsistent with that conclusion.

In consequence the Judge correctly categorised the Schedule 19 offence as falling within category A2. She was also entitled to treat the location and time of the offences on the streets that night as an aggravating factor. The fact, if so, that the appellant may not have known that the victims' respective homes were nearby, provides no assistance to his case, particularly in circumstances where he was following them.

As to the stalking offence against C1, we consider that the Judge was entitled to reach the categorisation which she did, having particular regard to the expert evidence before her, some of which was not available to the Prosecution at the time of their sentencing note. The evidence was to the effect that this was an offender who enjoyed scaring women. In any event, as Ms Wilson submitted, the suggested error in categorisation would not have any material impact on the ultimate decision to impose a life sentence. Nor would it have affected the minimum term, not least given the arithmetical error made in the appellant's favour.

As to the previous convictions, in our judgment these reveal the appellant, in Dr Duffield's words, as a recidivist sex offender. Over the years he has continued to offend, breaching SOPOs, SHPOs and suspended prison sentences. There have been gaps, most recently between June 2018 and February 2021, and between that date and August 2023; but the pattern and nature of the offending have continued and indeed escalated.

As to the assessment of risk, each case is intensely fact-dependent. In the present case we consider that the evidence, including the expert evidence of Drs Hopton and Duffield, fully justified the Judge's conclusion that it was impossible to say when, if ever, the appellant would cease to pose a serious risk to young women. We do not accept that the addendum report of Dr Hopton is inconsistent with that conclusion. To apply the language in Burinskas, it is impossible to make "a reliable estimate of the length of time for which he will remain a danger".

As confirmed in Burinskas at [138] uncertainty as to how long an offender will present a danger is not sufficient in itself to justify a life sentence. It is necessary to take into account all the other matters identified in Burinskas at [22]. The Judge duly took all of those other matters into account, including consideration of the alternative available sentences. Having done so, the Judge concluded that the imposition of a life sentence was justified. If that assessment is made, the sentencer has no further discretion in the matter: see R v Wilder [2023] EWCA Crim 1295; [2024] 1 Cr. App. R.(S.) 37.

Having reviewed the matter, we are satisfied that the Judge made a most careful assessment and evaluation of all the factors which are identified in s.285(3) and elaborated in Burinskas. We see no see no basis for any interference with the Judge's reasoning or conclusion. The appeal must therefore be dismissed.

We must however make one minor correction to the length of the minimum term to be served. In respect of the deduction to be made for the time spent on remand in custody, this must be calculated and deducted by reference to a number of days, not months: R v Cookson [2023] EWCA Crim 10; and R v Sesay [2024] EWCA Crim 483. It is now agreed that the correct number of days is 438, which is a few days more than the 14 months which were deducted. We will treat the pre-deduction term of 5 years and 3 months as 5 years and 91 days. The deduction of 438 days results in a minimum term of 4 years and 18 days. The minimum term is accordingly reduced to that extent.