R v Terry James

The provisions of the Sexual Offences (Amendment) Act 1992 apply to this appeal. 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, Terry James is aged 55. On 29 March 2023 he pleaded guilty in the Crown Court at Bradford to counts 26 to 33 and 35 to 37 on the Indictment charging him with sexual offences. On 12 September 2023, on the seventh day of his trial, the appellant pleaded guilty to further counts on the Indictment, being 2, 3, 5, 6, 9, 10, 13, 14, 16, 17, 18, 19, 20, 21, 22, 23, 24 and 25. The remaining counts were left on the file on the usual terms. He appeals with leave the sentence imposed on him in the Crown Court at Bradford on 1 December 2023 by Her Honour Judge McKone.

The offences to which he had pleaded guilty and their sentences appear in a schedule prepared by the Court of Appeal office below:

For the purposes of this appeal, attention is focused upon the sentences in respect of the offences of assault by penetration, contrary to section 2 of the Sexual Offences Act 2003. Those were counts 2, 3, 5, 6, 9, 10 13 and 14, for which an extended determinate sentence of 20 years was imposed, comprised of a custodial term of 17 years and an extended licence of three years and counts 19, 20, 21, 24 and 25 (also for assault by penetration) for which an extended determinate sentence of 19 years and one month, comprised of 16 years one month custodial term and a three-year extended licence. The difference between these two sentences is explained by the fact that the appellant pleaded guilty to these later offences partway through the trial, after five victims had been cross-examined but three had not. The judge applied a five per cent plea discount to the sentences in respect of those victims who had not given evidence.

The remaining offences of sexual assault and distributing indecent images of children, making indecent photographs of children and possessing extreme pornographic images received concurrent sentences as set out in the schedule above.

Further orders were made by the court including a Sexual Harm Prevention Order, a Surcharge Order and a Forfeiture and Destruction order. We shall return to those orders later. The appellant was also made the subjects of Notification Requirements within Part 2 of the Sexual Offences Act 2003 indefinitely, and he was made the subject of the safeguarding provisions which may lead to his inclusion on the relevant list by the Disclosure and Barring Service.

The appellant had a tattoo shop business in Bradford which also performed laser hair removal on women who had been recommended for his services. Whilst some of his work was legitimate, he carefully planned and carried out sexual offending upon female customers before the front of a legitimate business. Without the consent of any of the complainants, the appellant filmed what he was doing to each of them. They were required to wear goggles and a blindfold ostensibly for the purposes of protecting their eyes from the laser but also preventing them from seeing what the appellant was doing to them. The complainants were required to remove much of their clothing, whilst they lay down and expected to receive professional hair removal services from the appellant. For many complainants he took the opportunity to commit sexual offences against them. He used a spatula designed for hair removal which he inserted into the outer labia or the outer vagina. Unknown to the women the appellant recorded what he was doing on his hidden camera. None of the complainants had given their permission to be filmed, nor had they consented to any sexual acts. The private parts of four of the women were also photographed whilst the appellant used his mobile phone to focus on the vaginal area of those complainants. For some the appellant discussed overtly sexual topics and asked them to remove all of their clothing, for which he offered to make no charge for his services.

The matters came to the attention of the police when the appellant inserted his finger into the vagina of one of the complainants. She made a complaint to her mother who reported the matter to the police. This led to the discovery of the camera and the filmed images.

When interviewed, the appellant denied the offences for which he had been arrested. He blamed the complainant who had reported him to the police and stated that he had no sexual attraction to her or the other complainants. In further interviews he made no comment and stated that the camera was for security reasons.

At the time of committing these offences the appellant was under investigation by the police in respect of his earlier arrest on 26 May 2020 for breaches of a Sexual Harm Prevention Order imposed upon him on 10 November 2017 for seven years. That order was imposed together with a suspended sentence order for indecent images offences. On his arrest in 2020 the police discovered undisclosed devices upon which the appellant had stored images of sexual offending against children which he had shared on the Telegram application. When interviewed by the police, the appellant refused to provide PIN numbers for the other devices and was released under investigation. It follows therefore that the offences with which this appeal is concerned were committed whilst he was under investigation by the police for the further indecent image offences.

The appellant had one previous conviction for the offence which we have described in 2017. Victim personal statements revealed that each of the eight complainants of the assault by penetration offences had suffered at least substantial psychological harm. One had suffered severe harm to the extent of contemplating suicide. Each of the victim personal statements were summarised by the judge when sentencing.

A pre-sentence report concluded that the appellant posed an ongoing and serious risk of harm to both children and adults. He had informed the author of the report that he did not view what he had done as being wrong, but only realised the distress he had caused once he heard five of the complainants give evidence during his trial. He minimised what he had done and had limited insight into the harm caused. He lacked also any insight into the harm caused to children by the indecent images offences.

In sentencing the appellant, the judge, in careful analysis of the harm caused by him, concluded that each of the assault by penetration offences fell within Category 2A of the Guideline. In respect of harm, the complainants were each particularly vulnerable and severe psychological harm had been caused to at least one of them, whilst for others it was at least substantial harm. Culpability was assessed as Category A on the basis that there had been significant planning, including setting up of cameras, offering cut-price treatments to induce further offending, using a legitimate business as a cover, recording of the offences and a substantial abuse of trust. Taking each of the offences individually required a substantial uplift from the eight-year starting point within the sentence range of five to 13 years. The judge made clear that she was to treat the assault by penetration offences as the lead sentences, with all other offences incurring concurrent terms of imprisonment.

The aggravating factors of seriousness included that there were eight complainants of whom three had suffered multi-incident offences. The appellant had a previous relevant conviction in 2017. He had been on bail equivalent when he committed these more serious offences. The court was also to take into account the totality of offending whilst imposing concurrent sentences.

The judge substantially raised the sentence from its starting point and outside the sentence range. In doing so the judge reflected the Guideline at Step 2 that it may be appropriate to move outside the identified category range in the most serious cases. The judge sentenced the appellant for the assault by penetration offences to a custodial term of 17 years and after concluding that he is a dangerous offender, imposed Extended Sentences with a three year extended licence. As we have already stated, for those offences to which he pleaded guilty before the complainants gave evidence, a five per cent discount was applied to the custodial term, reducing that term to 16 years and one month.

It is argued on behalf of the appellant by Mr Barton, for whose oral and submissions we are grateful, that the custodial term was excessive and should be reduced. It is submitted that the increase from the eight year starting point to 17 years was wrong, although it is accepted that a significant increase was necessary given the circumstances of all of the offending, even taking the sentence to the top of the sentence range of 13 years. Mr Barton also argued that the acts of penetration by the appellant were less serious than in many other cases and whilst there were eight complainants the sentence should not have reached the level imposed by the judge.

This was a difficult sentencing exercise for the judge bearing in mind the number of offences and complainants. It was open to her to treat some of the offences as being the most serious and therefore lead sentences. Further, having assessed those offences individually at Category 2A, with significant aggravating and little by way of mitigating factors, it was then necessary to increase the sentence above the starting point. For each of the assault by penetration offences the judge concluded that a sentence at the top of the range was necessary. We are not persuaded that the type of penetration used by the appellant is the real issue. The judge was required to consider all of the circumstances including the means by which the appellant carried out these offences. After taking into account the number of victims and offences, together with the other offending, we are satisfied that the judge was correct to impose a sentence outside the Category 2A range.

The question that we must ask ourselves is whether a custodial term of 17 years, being four years above the top of the range for an individual offence was excessive. Although a severe custodial term, we are not persuaded that it was excessive. This was offending against multiple victims whether by assault by penetration or against a background of indecent images, at a time when the appellant was the subject to a Sexual Harm Prevention Order and, for the most serious offending, under a bail equivalent status. The effect upon the victims of the assault by penetration has been profound. In the circumstances, we do not find the custodial term to be excessive.

We turn then to the ancillary orders to which our attention has been brought by the Registrar. We are grateful for the assistance that has been provided by Mr Barton and Miss Hudson for the respondent. It is clear to us that the judge when sentencing intended that the extended sentences were to be imposed on those offences of assault by penetration. Accordingly we direct the court record should state that an Extended Sentence of 20 years, comprised of a custodial term of 17 and an extended licence of three years, is imposed in respect of counts 2, 3, 5, 6, 9, 10, 13 and 14. Further, that an Extended Sentence of 19 years and one month comprised of a custodial term of 16-years and one month and an extended licence of three years is imposed in respect of counts 19, 20, 21, 24 and 25. All remaining offences for which sentences were imposed are undisturbed.

In relation to the Sexual Harm Prevention Order which was imposed by the judge, some confusion has arisen as to whether that order was a variation of the 2017 order or whether it was a new order imposed by the court. It has been confirmed to us that the application was made by the prosecution for a new order and that an error was made in its recording by the court. Accordingly, we direct that the court record shows that a new Sexual Harm Prevention Order for an indefinite period was imposed. For the sake of clarity, the terms of the order are the same as those within the 2017 order, but that order has now expired.

The judge also imposed a Surcharge Order but without specifying the amount in open court, inviting the court to provide the amount when drawing up the order. It was drawn up administratively in the sum of £228 but the correct amount was £190. Accordingly, we reduce the amount so that it may now be corrected on the court record.

Finally, the Forfeiture and Destruction Order was recorded but not made in open court. In accordance with the decision of this Court, differently constituted, in the case of R v Leitch [2024] EWCA Crim 563, we must revoke that order since it was not made publicly.

In conclusion, we dismiss the appeal against sentence and have clarified the orders made and recorded by the court.