R v Troy Wilkinson

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 the offence. This prohibition applies unless waived or lifted in accordance with s.3 of the Act.

On 7 January 2010 in the Crown Court at Bradford the applicant, then aged 49, was sentenced pursuant to his plea of guilty on the date of trial to one count of inciting a child to engage in sexual activity, contrary to s.10 Sexual Offences Act 2003. The sentence was of imprisonment for public protection ("IPP") with a minimum term of two years. By this application, which the Registrar has referred to the full court, the applicant applies for an extension of time of 5592 days in which to apply for leave to appeal against his sentence. He contends that the imposition of a sentence of IPP was manifestly excessive and that the court should have imposed an extended determinate sentence.

The particulars of the count are that between 31 August and 5 November 2008, being a person aged 18 or over, the applicant incited a child under the age of 16, namely 15, to engage in sexual activity involving the penetration of the applicant's mouth with the child's penis, not reasonably believing that the child was aged 16 or over.

In August 2008 the complainant was on a work placement at a garage to which the applicant had gone as a customer. The applicant engaged the complainant in conversation and offered to repair a motorcycle owned by the complainant. The applicant subsequently arrived uninvited, in his camper van, at the complainant's home. At the applicant's invitation the complainant entered the van and they had a conversation about the motorcycle. Nothing inappropriate happened on this occasion. About a week later the applicant sought out the complainant at a park where he was playing football. He again invited the complainant into his van and they engaged in conversation. The applicant turned the conversation to matters about sex, telling the complainant of his sexual fantasies and desires. He told the complainant that he wished to engage in oral sex with him. He offered the complainant £5 to do this. When the complainant refused, the applicant increased the offer to £20. The complainant again refused and then left the van.

Thereafter the applicant made contact with the complainant by text messages and indicated that he was still willing to pay him money in exchange for the complainant allowing him to perform oral sex on him. The complainant was not interested. The applicant subsequently wrote him a letter stating that he was only joking when he made the offer.

On 5 November 2008 the applicant again visited the complainant, again uninvited, in his camper van. On this occasion there were also two young boys in the van. The applicant's attendance caused concern and he was asked to leave. The complainant reported the matter and the applicant was arrested on 25 November 2008. In interview he denied that any sexual conversation had taken place or that he had sent any text messages. He said that his letter of apology was because the complainant had spoken of some sexual experience that he had had in the past and that he, the applicant, had laughed at him.

The applicant had previous convictions. In 1991 he received a conditional discharge for an offence of assault occasioning actual bodily harm. In 1994 he was sentenced to 4 years' imprisonment for offences of attempted buggery and indecent assault on a male under 14. In 2000 he was sentenced to 5 years' imprisonment for an offence of indecent assault on a male aged 16.

In his discussion with the author of the pre-sentence report, the applicant admitted that, had the complainant agreed to his request, he would have gone ahead, despite knowing his age. He stated that he had not found the complainant attractive prior to the conversation and that his fantasy came about as a result of the complainant talking to him about sexual matters. He denied having offered him money to perform the act and stated that the only mention of money was in relation to him wanting to buy the motorcycle. The author's assessment was that the applicant may have created opportunities to have contact with the complainant over a prolonged period of time under the guise of being interested in the motorcycle. Further he appeared to be attempting to place some of the blame for his conduct on the complainant. The applicant also continued to maintain his innocence in relation to the previous offences.

The author concluded that the applicant's behaviour was indicative of a "manipulatory and predatory lifestyle, which involves a breach of the position of trust that he creates with young males". He appeared to have difficulties in understanding the perspective of his victims. He posed a high level of risk of harm to children, namely young males. The nature of the harm was of "sexually inappropriate behaviour, which may involve sexual assault and/or buggery or rape, and the psychological harm that is associated with this". The risk was imminent whilst he was within the community. Further the police Children and Public Protection Unit had assessed him as posing a very high level of risk to children.

As to the appropriate disposal, the author's opinion was that the present risk that the applicant posed to children could not be managed within the community. This was because it was his third conviction of a sexual offence and his previous prison sentences had not deterred him from his behaviour. As to the type of custodial sentence, the report stated: "As [the applicant] has been convicted of a serious specified sexual offence the court may need to consider the appropriateness of a Public Protection sentence. Should the Court choose to impose a determinate sentence, they may wish to consider an Extended Sentence for public protection. This would allow for an extended licence period in which the Probation Service could monitor [the applicant] and the risk that he poses to the victim and the community for a longer period of time, with the ability to recall him to custody in the event of any failure to comply."

Before turning to the judge's sentencing remarks, we consider the relevant sentencing provisions at the time of sentencing, namely 7 January 2010.

At that date, the original statutory provisions in the Criminal Justice Act 2003 relating to dangerousness and the imposition of IPPs had been amended with effect from 14 July 2008 by the Criminal Justice and Immigration Act 2008. Under the unamended provisions, in qualifying cases, a finding of dangerousness left the court with no option other than to impose either a discretionary life sentence or a sentence of IPP. An extended determinate sentence was not available. By virtue of the amendment in 2008, a finding of dangerousness in a qualifying case allowed the court to adopt one of four options, namely a discretionary life sentence; a sentence of IPP (s.225); an extended determinate sentence (s.227); or a simple determinate sentence.

In Attorney-General’s Reference (No 55 of 2008) [2008] EWCA Crim 2790; [2008] 2 Cr. App. R. (S.) 22, Lord Judge CJ said at [14] that in the exercise of the court's discretion, or more accurately, of its judgment, as to whether a sentence of IPP should be passed when the necessary criteria are established, the court was entitled to, and indeed should, have in mind all the alternative and cumulative methods of providing the necessary public protection against the risk posed by the individual offender. He described a sentence of IPP as the most draconian sentence available to the court after a discretionary life sentence. At [16], he stated that, apart from a discretionary life sentence, a sentence of IPP was the last resort. At [20], he continued: "In short, therefore, if an extended sentence, with if required the additional support of other orders, can achieve appropriate public protection against the risk posed by the individual offender, the extended sentence rather than imprisonment for public protection should be ordered. That is a fact specific decision."

Further, in R v Wilkinson [2009] EWCA Crim 1925; [2010] 1 Cr. App. R.(S.) 100, Lord Judge CJ, whilst noting certain differences between an IPP and a sentence of life imprisonment, observed at [16]: "For all that, it is well understood that an IPP has a great deal in common with a life sentence: 'Its justification is the protection of the public. It is indeterminate. Release depends on the judgment of the Parole Board as to the risk which the prisoner presents. The court must fix a minimum term before which release cannot be considered, calculated by reference to the hypothetical determinate term which would have been called for if the indeterminate sentence were not being passed. All those features it shares with a discretionary life sentence." For similar observations in the context of the pre-amendment regime, see R v Lang [2005] EWCA Crim 2864; [2005] 2 Cr. App. R. (S.) 3 per Rose LJ at [8].

By the Legal Aid, Sentencing and Punishment of Offenders Act 2012, Parliament abolished sentences of IPP for all offenders convicted after 3 December 2012. That did not affect those, like this applicant, who were convicted and sentenced to IPP before that date. In R v Roberts [2016] EWCA Crim 71; [2016] 2 Cr. App. R. (S.) 14, this Court made clear that a change of this nature in penal policy does not entitle this Court to reduce sentences in the light of the subsequent regime, and that where it was properly open to a judge to pass an IPP sentence in accordance with the law then in force, this Court would not revisit the sentence. Thus, at [42], it was said that the Court would not intervene "… where the judge has followed the provisions of the CJA 2003 as interpreted by the decisions of this Court and passed a sentence of IPP in circumstances where it was properly open to the judge to pass such a sentence…"

Roberts also re-affirmed the general principles that any application for an extension of time is within the discretion of the court, which always requires reasons to be provided as to why the court should grant an extension [36]; and that in making its decision the court will consider all the material circumstances, including the explanation for the delay and the cogency of the reasons in seeking an extension when determining whether it is in the interests of justice to do so [37].

In his sentencing remarks, the Judge rejected the applicant's account that the complainant had initiated discussion of sexual matters and the suggestion in his letter that he had been joking. The inherent seriousness of the offence was rendered far greater by the previous convictions of sexual offences. It had not been possible to obtain details of the 1994 offences, but the conviction in 2000 involved befriending a young man aged 16 in 1999 and inviting him to become involved in some DIY work in the applicant's house. When the young man attended, the applicant locked him in the house, showed him pornography and then performed oral sex upon him until he ejaculated. Although this was not the subject of a separate charge, he had then attempted to engage him in an act of anal intercourse. The substantial prison sentences imposed for these offences had not deterred the applicant. He had a persistent and unnatural interest in sexual offences with young males. His method involved prior grooming. Turning to the pre-sentence report, it was deeply troubling that the applicant appeared to blame the victim for the offence; to minimise his own culpability; and to continue to deny the matters of which he had previously been convicted.

The Judge concluded that the assessment of risk by the author of the pre-sentence report, and by the police specialist unit, were correct. He concluded that the applicant was a cunning and predatory paedophile who posed a high or very high risk of committing further sexual offences against boys or young men in the future; and that this carried a very significant risk of significant psychological harm to any future victim. Accordingly he concluded that the statutory test of dangerousness was met.

Turning to the appropriate sentence in such circumstances, the Judge first considered what would have been the appropriate length of a notional determinate sentence of imprisonment. Having considered the relevant sentencing guideline and noted the aggravating features of planning, persistence and grooming, he concluded that it would have been 4 years' imprisonment.

The Judge continued: "This is not a case which is so serious as to justify a life sentence, but it is, in my view, one in which imprisonment for the protection of the public is necessary, and therefore in the end, having set the notional period of four years, I sentence you to imprisonment for public protection of two years, which means you will not be released until you have served two years and only then when it is determined by those responsible that you are no longer a threat to the public and it is safe for you to be released." The Judge accordingly imposed an IPP with a minimum term of one-half of the notional determinate sentence, namely two years. He also imposed a Sexual Harm Prevention Order without limitation of time.

As to the reasons for the delay of over 15 years in bringing this application, Counsel for the applicant, Mr Stephen Knight, deals first with the results of the McCook enquiries which have been made. The applicant cannot remember which solicitors or Counsel represented him in the Crown Court. The Crown Court has no further information. A member of the Bar who may or may not be the advocate identified on the transcript has no recollection or notes of the case. In September 2018 the applicant sought advice on appeal from Counsel's chambers. He then approached many firms of solicitors to take on the case, without success. It was only in 2025 that the solicitors now instructed agreed to do so. They acted promptly and passed the papers to Counsel for advice.

As to the substance of the appeal, there is rightly no challenge to the finding of dangerousness. The contention is that the Judge erred in not imposing an extended determinate sentence.

Mr Knight points first to the concluding observation of the author of the pre-sentence report, that the court may need to consider the appropriateness of an IPP and may wish to consider an extended determinate sentence which would allow an extended licence period in which the applicant, and the risk which he poses, could be monitored.

Turning to the sentencing remarks, he submits that the Judge appears to have proceeded straight from the conclusion that a sentence of imprisonment for life was not justified to the decision that an IPP was necessary. No explanation was given as to why, if a sentence of life in prison was unnecessary, the very similar sentence of IPP was necessary. Further, and contrary to both the observation in the pre-sentence report and the guidance in Attorney General’s Reference (No 55 of 2008), the Judge gave no indication of having considered the imposition of an extended determinate sentence. The same aims of sentencing, including protection of the public from the applicant, could and should have been achieved by such a sentence, comprising a custodial term of 4 years and an extended licence period up to the maximum length of 8 years. In addition, the court had imposed a Sexual Harm Prevention Order. Mr Knight emphasised that the offence had involved no actual sexual contact; there had been no coercion or violence; it was not sophisticated offending; and it did not represent an escalation in offending.

In all the circumstances, Mr Knight submitted that the imposition of a sentence of IPP was manifestly excessive. In the event, the applicant still remained in prison more than 15 years after the date of sentence.

On behalf of the Crown, Mr William Davis submits that there is no basis for this court to revisit the sentence of an IPP. That sentence was properly imposed in accordance with the law in force at the time. An IPP sentence was available at the time. The Judge understood the law and the effect of the amendment made in 2008; and applied the correct test of necessity. He concluded that a discretionary life sentence was not necessary. He then considered an IPP and concluded that it was necessary. By implication he concluded that an extended determinate sentence would not provide appropriate protection for young males. Thus the Judge applied the requirements expressed by this Court in Attorney General's Reference (No 55 of 2008).

Although an extended determinate sentence was available, there were a number of factors which provided a solid base for the Judge's conclusion in favour of an IPP. These were: the similar, very serious, previous convictions which illustrated an unbroken pattern of behaviour; the failure of the previous sentences to deter the applicant; the finding that he was manipulative and cunning and had groomed his victim; the element of planning and persistence; the concern arising from the two young boys in the rear of the van on the final occasion of attendance at the complainant's address; the seriousness of the incited conduct; and the admission by the applicant that he would have proceeded to have oral intercourse with the victim had he consented to that.

In these circumstances, the Judge was right to conclude that it was necessary in the interests of the safety of young men and boys that the applicant be kept in custody until the Parole Board, with its expertise in such matters, decided that he was safe to be released. In the alternative, even if other judges might have concluded that an extended sentence would have provided sufficient public protection, the Judge was entitled to conclude that an IPP was necessary.

Further, the applicant's focus on the consequences of a sentence of IPP, i.e. the long time which he has spent in custody, was misplaced and immaterial. The consequences of IPP sentences were a matter for Parliament, not the Court. The decision to impose an IPP was risk-based and forward-looking. Set against all the information before the Court at the date of sentence, there was every reason for the Judge to make the order which he did.

This was serious offending by a recidivist sexual offender who presented a continuing high risk to young men or boys and plainly met the test of dangerousness. However, in our judgment, it was necessary for the Judge to give specific and express consideration to the question of whether an extended determinate sentence would achieve appropriate public protection against the risk posed by this applicant. The author of the pre-sentence report had rightly raised this question in the conclusion of her report. Authority, notably the decision of this court in Attorney General’s Reference (No 55 of 2008), required the Court to do so. On the available material we infer that the judge may not have been reminded of this important guidance by those representing each party at the hearing. In any event, we are not satisfied that the Judge gave any real consideration to an extended determinate sentence. The sentencing remarks contain no reference to that possibility. Having decided that a discretionary life sentence was not necessary, the Judge then proceeded, without further explanation, to conclude that an IPP was necessary. Some explanation was necessary, in circumstances where the two types of sentence have so much in common.

In consequence, we consider that this is a case where the sentencing judge did not follow the relevant sentencing provisions as interpreted by decisions of this Court; and that in consequence (and subject to satisfaction on the reasons for delay) this Court should revisit the sentence: see Roberts at [42]. We do so without regard to the consequence of the time that the applicant has in fact served.

Having considered all the material which was before the Judge, we respectfully conclude that he erred in imposing the sentence of second last resort. Very serious as was the applicant's offending and his future risk, we do not consider that the Judge was entitled to impose an IPP. In our judgment the appropriate sentence in all the circumstances was an extended determinate sentence totalling 12 years, comprising a custodial term of 4 years and an extended licence period of 8 years. The overall package also included the further protection provided by the Sexual Harm Prevention Order without limitation of time.

Having regard to the substantive merits of the appeal and the explanation for the delay, we are also satisfied that the necessary very long extension of time should be granted.

Accordingly we grant the application for the extension of time; grant leave to appeal; and allow the appeal to the extent of quashing the order of an IPP and substituting the extended determinate sentence which we have indicated.