R v Yossa Maunders

The provisions of the Sexual Offences (Amendment) Act 1992 apply to this case. 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 their 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 judgment has been anonymised accordingly.

This appeal against sentence, together with an application for an extension of time to appeal has been referred to the Court by the Registrar. There is common ground between the parties that an unlawful sentence was imposed on the applicant for non-recent offences of buggery. We grant the extension of time and leave to appeal.

After a trial at Cardiff Crown Court the appellant (then aged 47) was convicted on 16 June 2021 of ten sexual offences against two complainants. In counts 1 to 9, committed between 14 October 1987 and 1 November 1988, the complainant “C1” was aged 8 or 9 years and the appellant was 14 or 15 years. Count 10 was committed between 2 November 1986 and 13 October 1987, when “C2” was about 8 and the appellant aged 13. Counts 1, 3, 4, 5 and 6 were charged as indecent assault on a male contrary to section 15 of the Sexual Offences Act 1956. Counts 2, 7, 8, 9 and 10 were offences of buggery contrary to section 12 of the Act.

The appellant was sentenced to 5 years’ imprisonment on counts 1, 3 and 4; 2 years’ imprisonment on count 5 and 6 and 7½ years’ imprisonment on counts 7 and 8. On count 9 an extended sentence of 15 years was imposed, comprising a custodial term of 7 years and 6 months and an extension period of 7 years and 6 months. On count 10, the sentence was not announced in court but recorded as “no separate penalty”. A sexual harm prevention order of indefinite duration was imposed. Subsequently, when the appellant was due to be sentenced for other like offences in 2024 prosecuting counsel noted the sentence on count 9 was unlawful.

Defence counsel at the trial has since retired but the appropriate McCook inquiries have been made and the appeal is pursued by counsel instructed in the recent case. The first ground of appeal is that the offence of buggery, contrary to section 12 of the Sexual Offences Act 1956 is not a specified offence as it is not listed in Part 2 of Schedule 18 of the Sentencing Act 2020 and so an extended sentence was not available to the judge. The second ground of appeal is that the sentences passed on counts 1, 3, 4, 5 and 6 for indecent assault on a male, were wrong in principle because the maximum sentence available at the time for a young offender aged 14 was 4 months and aged 15, 12 months and there was no good reason to exceed that sentence. It is accepted that a custodial sentence was available in respect of count 10.

The appellant’s younger brother was friends with the complainants. The offences of oral sex charged as indecent assault and buggery against C1 were committed when he visited the appellant’s home to play. The appellant gave C1 gifts in order to ensure compliance. He also threatened C1 not to tell anyone what he was doing. The single offence of buggery against C2 happened when the appellant persuaded him to move away from a group of friends in the grounds of a hospital.

The complainants had made personal statements setting out the deep impact of the appellant’s actions against them. Both men have struggled to be trustful and experienced feelings of shame. They were overly protective of their own children and felt they had been manipulated as well as abused by the appellant. C1 suffered a nervous breakdown as an adult in 2018 and lost his job. Both men found the investigation and trial harrowing.

The appellant had relevant convictions for subsequent sexual abuse of young boys and a range of matters including driving offences, possession of drugs, burglary and other dishonesty. In November 2006, for 10 offences of indecent assault on a male under the age of 14, concurrent sentences of 10 years, consisting of 4 years’ custody and 6 years extended licence, were imposed for two of those offences with terms of 3 years’ imprisonment on the others also concurrent.

Agreed Facts provided to the jury at the instant trial summarised the background into those matters. Between January 1993 and December 1997 (when the appellant was aged 19 to 24) he committed eight offences of indecent assault on a boy aged between 5 and 9 who was the child of a friend. Two further offences were committed between July 2002 and December 2003, when the appellant was baby-sitting for a boy aged between 7 and 9 years. At that time the appellant was 29 and 30. We take these facts from the judge’s recital of the Agreed Facts at the trial.

The Prosecution’s Sentencing Note, endorsed by the defence, set out the maximum sentences equivalent to current offences and general principles in the then most apposite authority from this Court R v Forbes [2016] EWCA Crim 1388, to assist the judge at the sentencing exercise. However, errors crept into the submissions made to the judge both written and oral. Firstly, that there was no form of custodial sentence available at the time of the buggery committed by a child of 13. Secondly, a failure to observe that sentencing powers in respect of the indecent assaults were limited according to the age of the offender at the time because the maximum sentence for indecent assault on a male was less than 14 years’ custody. Furthermore, in oral submissions counsel for the prosecution stated that as the appellant had a previous conviction for an offence listed in Schedule 18 of the Sentencing Act 2020, if he was judged to be dangerous anextended sentence was available for the buggery offences against C1.

The judge had the benefit of presiding over the trial at which the appellant had the assistance of an intermediary. He had sight of a pre-sentence report prepared following the convictions in 2006 and also psychiatric reports prepared by Dr Richard Maggs in June 2020 and July 2021.

The appellant has a low IQ and experienced a traumatic and disrupted upbringing, included alleged sexual abuse by his own stepfather and stepbrother from the age of 6. He had been seen by psychiatric services while in custody in 2018 for unrelated matters and admitted to hospital where he received treatment and diagnosis. The psychiatrist noted that the appellant remained extremely troubled and vulnerable. The current offending was still denied. He concluded that the driver of sexual offending in this case was sexual gratification and there was no basis for concluding it has diminished. Accordingly, as well as continuing to pose a high risk of self-harm including suicide, the appellant met the test for dangerousness in the criminal jurisprudence. On the appellant’s behalf it was argued that the appellant was now a more mature man and a determination that he remained dangerous would not be justified.

In his sentencing remarks the judge noted that apart from an unrelated appearance in the Juvenile Court, the instant offending had been the appellant’s first criminality. He recognised he was bound not to exceed the maximum sentence available in law at the time that the offences were being committed but could have regard to current Sentencing Guidelines as relevant to the equivalent offences in the Sexual Offences Act 2003. The contemporary understanding of the gravity of sexual offending, particularly against children was much greater than in the past and maximum sentences had been increased accordingly. The appellant could not rely on good conduct apart from these long recent offences committed early in his life because of subsequent sexual offending and other criminality but the judge would be careful, he said, to have regard to the totality of the sentence imposed to ensure that it was just and proportionate.

In respect of C1 the appellant had made him feel helpless and this had been achieved through the gifts and threats as well as the age difference of 5 years between them which would seem much greater to a child of 8 or 9. Counts 5 and 6 were specimen offences of oral sex, an equivalent offence of section 7 (sexual assault of a child under 13) which, under the present guideline, would have a starting point of 4 years for a single incident.

Although it was impossible to calculate exactly the number of occasions, the evidence was of a prolonged and systematic course of conduct over a number of months. There was no evidence of remorse or empathy, but given the appellant’s age at the time reductions would be made from the likely contemporary sentence. The deductions were substantial. On all counts except buggery the sentences imposed were half of those the judge considered would have been appropriate for a 21-year-old. On counts 2, 7, 8 and 9 he would have imposed 16 years’ imprisonment for a reduced sentence of 7 years and 6 months. An extended sentence was required because the subsequent offending together with other material before the judge meant that the test for dangerousness was met. In particular, the appellant had been diagnosed with an emotionally unstable personality disorder, exhibited in a marked tendency to act impulsively without consideration of consequences, affective instability, which means a minimal ability to plan ahead, and outbursts of intense anger leading to violence or behavioural explosions when criticised or thwarted.

Although the most up-to-date report before the Court confirmed the absence of psychotic illness no significant treatment was available for the personality disorder and the psychiatrist’s assessment confirmed the view taken in 2006 by the author of the pre-sentence report that the dangerousness test was indeed met. The judge imposed an extended sentence because he too concluded that the applicant presents a high risk of causing significant harm to others and a standard determinate sentence would not be adequate protection.

There is no challenge to the custodial term in count 9 or identical concurrent custodial terms on the other counts of buggery against C1. It is accepted that the period reflected the gravity of the overall offending, including the offence in count 10.

Turning to the first ground of appeal, an extended determinate sentence is a sentence of imprisonment, the term of which is equal to the aggregate of the appropriate custodial term and a further period (the extension period) which the offender is subject to a licence (sections 266 and 279 of the Sentencing Act). In the present case the requirements were that the offence in question is a specified sexual offence listed in Part 2 of Schedule 18 of the Sentencing Act 2020 (section 306(1)), the offender is 21 or over when convicted, the court is of the opinion that there is a significant risk to members of the public of serious harm occasioned by the commission by the offender of further specified offences (section 308), no other sentence is mandatory in the case and either the “earlier offence” condition or the 4-year term condition is met (section 267(1) and 280(1) of the Sentencing Act 2020). Unlike rape, contrary to section 1 and indecent assault on a male contrary to section 15, buggery, contrary to section 12 of the Sexual Offences Act 1956, does not appear in Schedule 18. Accordingly, the sentence imposed on count 9 was unlawful.

It is submitted by Mr Donnison, who now represents the appellant, that an extended sentence could not have been attached to any other of the offences of which the appellant was convicted. It is necessary to unpack this submission. Unlike buggery, counts 1, 3, 4, 5 and 6 are specified offences because the section 15 Sexual Offences Act 1956 charges do appear in the Schedule. However the final condition for imposition of an extended sentence, namely the earlier offence requirement or the 4-year term condition cannot be met in this case. The earlier offence condition is that when the offence was committed the offender had already been convicted of an offence listed in Schedule 14 of the Sentencing Act (section 267(3) and 280(3)). This offender was not convicted of any such offence until 2006. The 4-year term condition (the alternative) is that if the court were to impose an extended sentence the term that it would specify as the appropriate custodial term (section 268) would be at least 4 years (section 267(4) and 280(4)). It is permissible to consider the totality of the offending and to aggregate individual sentences to satisfy the 4-year requirement, but it is not permissible to impose consecutive sentences to do so (see R v Pinnell (2010) and R v Camara (2022)). Ms Wilks, for the Crown, agrees that the sentences imposed on counts 1, 3, 4, 5 and 6 exceed those available for a child offender at the time the offences were committed. There is no criticism of the judge’s finding of dangerousness.

The question arises whether it would have been possible to achieve the result that the judge intended by attaching the extended sentence to one of the convictions that is a specified offence listed in Schedule 18. Sexual assault on a male is such an offence but here the different issue of the 4-year term condition arises.

While the judge had available the maximum of a life sentence in relation to the buggery, the maximum sentence for indecent assault of a male (for an adult offender) is 10 years’ custody. Furthermore, the maximum sentence available for a young offender at the time of the offending depended on his age. In R v Ahmed [2023] EWCA Crim 281, which postdates the sentence in this case but provides comprehensive guidance for judges dealing with adults who committed sexual offences as children, the Court directed attention to section 59(1) of the Sentencing Act 2020, which requires consideration of the Sentencing Children and Young People Guideline. At paragraphs 6.1 to 6.3 the Guideline says:

“6.1

There will be occasions when an increase in the age of a child or young person will result in the maximum sentence on the date of the finding of guilt being greater than that available on the

date on which the offence was committed (primarily turning 12, 15 or 18 years old).

6.2

In such situations the court should take as its starting point the sentence likely to have been imposed on the date at which the offence was committed. This includes young people who attain

the age of 18 between the commission and the finding of guilt of the offence26 but when this occurs the purpose of sentencing adult offenders27 has to be taken into account, which is:

•

the punishment of offenders;

•

the reduction of crime (including its reduction by deterrence);

•

the reform and rehabilitation of offenders;

•

the protection of the public; and

•

the making of reparation by offenders to persons affected by their offences.

6.3

When any significant age threshold is passed it will rarely be appropriate that a more severe sentence than the maximum that the court could have imposed at the time the offence was

committed should be imposed. However, a sentence at or close to that maximum may be appropriate.”

This guidance is also signposted at paragraph 9 of the Guideline on Historical Sexual Offences which states:

“9.

If the offender was very young and immature at the time of the offence, depending on the circumstances of the offence, this may be regarded as mitigation affecting the offender’s culpability. Further, where the offender was under 18 at the time of the offence the court must consider the principles set out at paragraphs 6.1 to 6.3 of the Sentencing Children and Young People guideline. The court should take as its starting point the sentence likely to have been imposed at the time of the offending, and bear in mind the maximum sentence which could then have been imposed on the child offender.”

In this case the trial judge made no finding of fact regarding the appellant’s age at the time of this offending in the counts of indecent assault. If he was aged 14 the maximum sentence available was 4 months’ detention in a young offender institution and if he was 15, then the maximum increases to 12 months’ detention (section 1A and 1B of the Criminal Justice Act 1982). However, the appellant turned 15 on 14 October 1988 and the dates in counts 1, 3, 4, 5 and 6 end on 1 November 1988. We have considered the evidence carefully and it is not possible to conclude that any of the offending in the relevant counts must have been committed in the 2 weeks at the end of the indictment dates.

The court is not bound by the maximum applicable to the offender as a child. But the judgment of Ahmed (supra) makes clear that the court should only exceed the maximum where there is good reason to do so. There is no challenge to the judge’s assessment of the gravity of these offences and that the appellant bore high culpability despite his youth. However, no good reason as required has been suggested in this case. Accordingly, we quash the sentence on count 9 and replace it with a determinate sentence of 7 years 6 months. We quash the sentences on counts 1, 3, 4, 5 and 6 and replace them with sentences of 4 months’ detention consecutive to each other but concurrent to the sentence on the offences of buggery. We also quash the no separate penalty order on count 10 and impose 7 years 6 months’ custody. The total sentence is therefore now 7 years and 6 months. That determinate term does reflect the gravity of this case and the aggravating features present. We reiterate that the judge’s analysis of the factors indicating that this appellant was dangerous andproceeding to conclude that the dangerousness test was met is not the subject of any criticism. This appeal is allowed because of the illegality of the sentence imposed on count 9 for buggery.

As regards indecent assault, these offences are Schedule 18 Part 2 offences and would permit imposition of extended sentences in a suitable case where good reason was found. This Court finds it inappropriate to determinate retrospectively whether there would have been good reason to exceed the period of detention that would have been available if the appellant had been sentenced according to the age that he was when he committed the offences, and we have not heard full argument on the point. To that extent this appeal succeeds.

We wish to extend our thanks to both counsel for their excellent written and oral submissions.