R v David Mark Valentine

On 2 December 2024 in the Crown Court at Portsmouth, the appellant (then aged 57) was convicted of the offences of indecent assault, contrary to s.14 Sexual Offences Act 1956 (Count 1), assault of a child under 13 by penetration, contrary to s.6 Sexual Offences Act 2003 (Count 2) and two counts of assault by penetration, contrary to s.2 of the 2003 Act (Counts 3 and 4). No evidence was offered against him on three counts of making indecent photographs of children (Counts 5-7) and possession of prohibited images of a child (Count 8). Verdicts of not guilty were duly entered in respect of those Counts.

On 7 February 2025 at the same Court, the trial Judge imposed a sentence of imprisonment totalling an extended determinate sentence of 13 years, comprising a custodial term of 9 years and an extended licence period of 4 years. In addition, the judge imposed ancillary orders comprising a Sexual Harm Prevention Order ("SHPO") until further order, a Restraining Order until further order and a Deprivation Order in respect of devices seized from him. There is no appeal in respect of the sentence of imprisonment. With the leave of the single judge, the appellant appeals in respect of each of the ancillary orders.

The provisions of the Sexual Offences (Amendment) Act 1992 apply to these offences. 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. The prohibition applies unless waived or lifted in accordance with s.3 of the Act.

The offending in Count 1 took place in the period 2002 to 2004, when the female complainant (C1) was aged 10 or 11. C1 was staying with her family at the appellant's house and sleeping in the living room on a sofa. In the early hours of the morning she found him sitting next to her. He touched her vagina under her pyjamas.

The offending in Counts 2-4 related to the female complainant (C2), who stayed from time to time at the house where the appellant lived with a female relation of C2. Count 2 was a multiple incident Count of at least five occasions of digital penetration of her vagina between the ages of 6 and 12. Count 3 concerned the same behaviour when she was aged 13-14. Count 4 related to the final occasion of digital penetration when she was aged 14.

The pre-sentence report noted that the appellant accepted but did not agree with the verdicts of guilt. He was either unable or unwilling to acknowledge his sexual offending. The author's impression was that he simply saw the presence of these girls in his home as an opportunity for personal sexual gratification. His conclusion was that the appellant's remorselessness and lack of behavioural boundaries around children gave rise to a high likelihood of reoffending. Thus he presented a high risk of causing serious harm, sexual and emotional, to prepubescent/pubescent girls. The appellant had no previous convictions and one caution for battery in 2005. In the context of these offences he was treated as of effective good character.

In his sentencing remarks the Judge referred to the conclusions of the pre-sentence report and also to the victim personal statement of C2 which described the devastating blow the offending had caused to her internal stability and feelings of safety and confidence. The judge concluded that the appellant met the test of dangerousness and imposed the extended determinate sentence to which we have referred.

By its sentencing note for the hearing the Crown applied for a Restraining Order, a SHPO and a Deprivation Order in respect of devices seized from the appellant, namely an Apple IPhone, two Dell laptops and a Mini Station storage device. By a detailed note in response, Counsel for the appellant, Mr Thomas Acworth, who appears again today on his behalf, did not oppose the principle of a SHPO but set out objections to certain of the proposed terms and submitted that it would be wrong to make an order without limitation of time. As to the proposed Restraining Order to protect C1 and C2 and C2’s female relative, he submitted that there was no sufficient basis to make the order. In his oral submissions he also opposed the making of a Deprivation Order.

As to the proposed SHPO, the Judge accepted Mr Acworth's objections in certain respects, but (a) imposed an order for an indefinite period and (b) did not agree to delete the terms which provided:

Mr Acworth had argued that there was no basis to impose these terms in circumstances where the appellant had not been convicted of any offences that involved the use of digital devices. On the contrary, the Crown had offered no evidence on counts 5-8 and he had been duly acquitted of those offences. Thus the proposed terms failed the test of necessity. He further submitted that an order without limit of time was not justified.

The Judge held that these prohibitions were necessary "because of the material that was found on the devices that had been seized and bearing in mind the comments in the report", i.e. the pre-sentence report. He imposed the SHPO "until further order".

The Crown sought a Restraining Order to protect C1, C2 and C2’s female relative, in terms which prohibited the appellant from making contact with them. In opposing such an order, Mr Acworth submitted that it failed to meet the purpose test in s.360 Sentencing Act 2020. This provides that, where the court is dealing with an offender for an offence, it may make a restraining order for the purpose of protecting the victim or victims of the offence, or any other person mentioned in the order, from conduct which (a) amounts to harassment or (b) will cause fear of violence: see also R v Debnath [2005] EWCA Crim 3472; [2005] 2 Cr. App. R.(S.) 25. Mr Acworth submitted that there was no necessity to make a Restraining Order in any respect. The appellant had not had contact with C1 for an extremely long period of time and there was no evidence that he had ever sought to contact her. He had had no contact with C2 since his arrest in November 2021. There was no suggestion that he had ever engaged in contact that amounted to harassment of C2's female relative or conduct that would cause her to fear violence.

The Judge accepted the submission in respect of C2's female relative but made the requested order in respect of C1 and C2. In doing so he noted that the pre-sentence report identified them as potential victims. He appreciated that C2 was much older but concluded that it seemed sensible and proportionate to give both of them peace of mind. The terms of the order prohibit the appellant "having any contact by any means whatsoever with [C1] or [C2]".

The Crown's application for deprivation of the identified devices was made pursuant to s.153 Sentencing Act 2020. By that section, as material:

Mr Acworth opposed the application on various bases, including the fact of the appellant's acquittal on counts 5-8, to which we will return. The Judge concluded that the application met the test in section 153(3)(b), namely that the devices were intended by the appellant to be used for the purpose of committing or facilitating the commission of any offence. He stated that: "Bearing in mind they contained images of children, which is very much in line with the offending that you actually carried out, I am satisfied that they continued to facilitate offending because they gave buoyancy and life to your preoccupation with sexual offending against young children, so they will be forfeited and destroyed."

The consequential court order is headed "Forfeiture and Destruction Order" and states it to be pursuant to s.143 Sentencing Act 2000. This was in fact a Deprivation Order pursuant to s.153 Sentencing Act 2020, which is the statutory successor of s.143 Powers of Criminal Courts (Sentencing) Act 2000. By contrast the various statutory powers to make forfeiture orders are listed in s.160 Sentencing Act 2020.

By this appeal Mr Acworth renews the challenge to the making, or terms of, these ancillary orders. As to the deprivation order he submits that the decision was wrong in principle. Where the Crown does not proceed on Counts to which a defendant has pleaded not guilty, the sentencer must not sentence on the basis that he is guilty of those offences: R v Ayensu (1982) 4 Cr. App. R.(S.) 248. In breach of that principle the Judge had made a finding that the appellant knew of the existence of images on the devices and had viewed them. Therefore there was no basis for the court to conclude that the appellant intended to use the devices for the purpose of committing or facilitating the commission of any offence, nor indeed that they had been used for that purpose.

As to the SHPO, Mr Acworth submits that the prohibitions in paragraphs 5 and 6 of the SHPO offend both the principle in Ayensu and the statutory test of necessity for the purpose of protecting the public or any particular members of the public from sexual harm from the offender: s.343 Sentencing Act 2020. The Judge should again have proceeded on the basis that the appellant had not committed the offences of which she had been acquitted and in consequence there was no basis to conclude that these provisions were necessary. Further, the Judge was wrong to impose a SHPO without limit of time. In R v McLennan and Bingley [2017] EWCA Crim 2464; [2018] 1 WLR 2969 at [25(iii)] the Court stated that: "A SHPO should not be made for an definite period (rather than a fixed period) unless the court is satisfied of the need to do so. An indefinite SHPO should not be made without careful consideration or as a default option. Ordinarily, as a matter of practice, a court should explain, however briefly, the justification for making an indefinite SHPO, though there are cases where that justification will be obvious."

The Judge had not provided any reason for making an indefinite order. The unchallenged determination that the appellant had met the test of dangerousness was not itself sufficient to justify the imposition of an order without limitation of time. An order for a fixed but lengthy period would have been sufficient to meet the statutory purpose.

As to the Restraining Order, by s.360 Sentencing Act 2020, the statutory purpose was the protection of the victim or victims of the offence, or any other person mentioned in the order, from conduct which amounts to harassment or will cause a fear of violence. As stated in Debnath at [20], the purpose of a restraining order was to prohibit particular conduct with a view to protecting the victim or victims of the offence and preventing further offences under ss. 2 or 4 of the 1997 Act. Mr Acworth submitted that that purpose in substance amounted to a test of necessity. By contrast, the court was not vested with an enfettered discretion to impose a restraining order.

By the time of the sentence it was common ground that the appellant's relationship with C1's female relative had ended in the late 2000s. There was no evidence that C1 had any considerable degree of contact with the appellant between the offence and that occurrence, nor that the appellant and C1 had been in any contact for more than a decade. The appellant's relationship with C2’s female relative had broken down irretrievably and he had not been living with her since the allegations came to light in late 2021; and he had not been in contact with C2 since October 2021. There was no evidence that the appellant ever engaged in conduct that would have amounted to harassment of C1 or C2 or of causing either to fear violence. Accordingly the Restraining Order was wrong in principle. In the alternative, the case for the order against C1 was particularly weak and should not have been made. In any event, the indefinite period of the Restraining Order was disproportionate. The appellant had not been in contact with either of the victims for a very lengthy period of time. His opportunities for associating with them had been removed by his change in personal circumstances. An order expiring at the same time as the conclusion of the appellant's entire sentence, i.e. 13 years, would be more than sufficient to protect C1 and C2.

The trial Judge had before him a case which showed very serious offending by the appellant against the young female complainants. The inevitable and lasting distress and harm were evidenced in the victim personal statement of C2. The pre-sentence report showed a disturbing inability to acknowledge what he had done; and a high risk of causing serious sexual and emotional harm to young girls. All these factors emphatically justified the finding of dangerousness and the extended determinate sentence of the length which was imposed.

However we are persuaded that the Judge was not entitled to impose the Deprivation Order in respect of the appellant's devices. This is because of the two matters identified by Mr Acworth. The appellant having been acquitted of counts 5-8, relating to making indecent photographs of children and the possession of prohibited images of a child, we do not consider that the Judge was entitled to proceed on a basis which in substance proceeded on a contrary basis: cf. Ayensu. In consequence but in any event, we do not think it was open to the Judge to conclude that the appellant intended to use the devices for the purpose of committing or facilitating the commission of any offence: s.153(3)(b) Sentencing Act. In our judgment, the suggestion that they gave buoyancy and life to his preoccupation with sexual offending provides no sufficient basis for that finding of intent. Accordingly the Deprivation Order will be set aside.

In our judgment, the imposition of the prohibitions in paragraphs 5 and 6 of the SHPO faces the same objection that it is founded upon the Counts for which the appellant had been acquitted. In consequence, and in any event, we conclude that the test of necessity for those prohibitions was not established.

As to the duration of the SHPO without limit of time, we are not satisfied that the need for the order to be indefinite spoke for itself and required no further explanation. In our judgment the duration of the order should not have exceeded 15 years. We substitute that period.

We are not persuaded that the Judge was wrong to impose a Restraining Order. We do not accept that s.360 Sentencing Act 2020 imposes a test of necessity. The test is that such an order may only be made for the identified statutory purpose. It is then a matter for the exercise of judicial discretion. Although the offending against C1 was more distant in time, and there had been no contact for a substantial time, we consider that the making of an order in respect of both C1 and C2 was justified. However we again consider that there was no sufficient reason for the order to be of indefinite duration. We substitute a term of 15 years.

Accordingly, we allow the appeal to the extent of:

In addition we confirm that the statutory surcharge provisions did not apply in this case.