R v Steven Sillitto

INTRODUCTION

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 that offence. This prohibition applies unless waived or lifted in accordance with section 3 of the Act. This judgment has been anonymised accordingly.

On 16 December 2011, in the Crown Court at Newcastle Upon Tyne, the appellant pleaded guilty to two offences of trespass with intent to commit a sexual offence, contrary to section 63(1) of the Sexual Offences Act 2003 (Counts 1 and 2), and to one offence of having a bladed or pointed article, contrary to section 139(1) of the Criminal Justice Act 1988 (Count 3). He was 19 years old at the time of the offending and at the time of sentence.

On 2 March 2012 he was sentenced by Mr Recorder Campbell QC, on Count 1, to an indefinite sentence of detention in a young offender institution for the protection of the public, with a specified minimum sentence of three years (less time served) before he would be eligible for consideration for release on licence by the Parole Board. However, in the circumstances identified below he remains in prison at this time.

The Recorder made a Sexual Offences Prevention Order, until further Order pursuant to section 104 of the Sexual Offences Act 2003. Having been convicted of an offence listed in Schedule 3 of the Sexual Offences Act 2003, the appellant was required to comply with the provisions of Part 2 of the Act (notification to the police) indefinitely. Having been convicted of an offence specified in the schedule to the Safeguarding Vulnerable Groups Act 2006 (Prescribed Criteria and Miscellaneous Provisions) Regulations 2009 the appellant will also have been included in the relevant list by the Disclosure and Barring Service.

No separate penalty was imposed in respect of the bladed article offence (Count 3). It is recorded on the Record Sheet that no separate penalty was also imposed on Count 2 (one of the section 63 offences). This appears to have been an error (not least given that the second offence might properly be considered to be the more serious). Unfortunately, it has proved impossible to investigate the matter further because the case is not recorded on the Digital Case System and a great deal of time has passed since the sentence was pronounced and so we, like the previous full court before us, proceed on the assumption that, as the record indicates, the indefinite sentence was passed only on Count 1. However, nothing turns on this as the appellant was in any event sentenced on the basis of the totality of his offending.

The appellant was advised by his legal representatives at trial that there was no prospect of appealing against that sentence. However, having received positive advice from Mr Beechey (who was not counsel at the time of sentence), and following a referral to the full court by the single judge, the full court on 15 January 2025 granted an extension of time of 4,298 days for seeking leave to appeal against sentence, and gave leave to appeal against sentence.

The full court also made a number of directions in their Order of 15 January 2025, all of which have been complied with, and the product of which has assisted us greatly on the hearing of this appeal:-

We address such matters in due course below, but we first turn to the facts of the appellant's offending and the applicable sentencing regime in place at the time of sentencing.

THE OFFENDING

The complainant in this matter, whom we shall call "C," lived with her husband and two small children (aged 3 years and 9 months) in a building which the couple ran as a guesthouse. The family's bedrooms were on the third floor at the very top of the house.

Late at night, on 24 August 2011, the appellant gained access to a downstairs sitting room via a patio door. He was unable to access the rest of the house on that occasion because an internal door was locked. He managed to access a computer used for the purposes of the family business. Over a period of just over an hour he used the computer to access a large number of pornographic sites, searching particularly for films showing a man having sexual intercourse with a sleeping woman. On his own account, he was under the influence of drink and drugs. As the Recorder noted, the appellant was able to ascertain who lived in the house from the items that were in the sitting room. On that first occasion, having apparently masturbated, the appellant left the premises empty-handed, despite initially telling the police that he had gone there to steal (the computer being an obvious item he could have stolen had that been his intent).

He returned to the same property on the very next night. He forced his way in through an insecure window. This time he was able to gain access beyond the downstairs room. First, he accessed the computer, looking for similar material, entering search terms such as "Hot Sexy Mums are sleeping…Triple X". Then, after having viewed such material for a much shorter period of time than he had done on the previous night (no doubt so as to sexually arouse himself) he made his way up to the top floor. There were no guests staying in the premises at the time, and en-route he passed another floor where doors were open, and items could have been stolen (had that been his intent, which it clearly was not).

Shortly after midnight, C heard the bedroom door rattle and got up, assuming that the noise had been made by one of the children. She opened the door and was confronted by the appellant who was standing on the landing. He had a hood up and was wearing a pair of Marigold rubber gloves. He was also carrying a pair of scissors, although these were held by his side. He appeared to be calm, and unperturbed by the unexpected encounter with an intended victim who, far from being asleep, was very much awake.

C shouted at the appellant to get out of the house. This woke up her husband who jumped out of bed and confronted the appellant. When C's husband told her to ring the police, the appellant responded: "Big mistake, bad things are going to happen". There was a dispute as to what he meant by that. C's husband managed to get the appellant downstairs and let him out of the house. He then rang the police.

The couple, who up to that point had believed that they had disturbed a burglar, then discovered that their computer, which was next to the telephone, was showing a pornographic website. Understandably, the realisation that C was the likely target of a sexual assault by the person they had confronted caused a great deal of distress to C and her husband, such that for a while the entire family took to sleeping in the same bedroom. As the Recorder put it, the trauma to C and the whole family was incalculable. The couple discontinued their business.

The appellant was arrested the very next day. In his initial police interview he admitted breaking into the property with the intent to steal, but denied viewing pornography or going into the house. In later interviews he admitted entering the property on consecutive nights, viewing pornography on the computer, and going upstairs to the bedroom wearing gloves and carrying the scissors which he said he had used to break in. However, even after pleading guilty, he consistently denied that he had any sexual motivation for going upstairs.

The appellant had one previous conviction for common assault and criminal damage in 2009, for which he had received a referral order. He had been under investigation by the police for at least one previous sexual offence, but no charges were brought against him.

THE SENTENCING REGIME

The maximum sentence for an offence under section 63 of the Sexual Offences Act 2003 is imprisonment for a term not exceeding ten years. This was a serious offence for the purposes of sections 224 to 229 of the Criminal Justice Act 2003, and therefore the provisions of the Act relating to dangerous offenders were potentially engaged.

The appellant was sentenced after the amendments to the Criminal Justice Act 2003, contained in the Criminal Justice and Immigration Act 2008, were brought into force on 14 July 2008, but before the amendments contained in the Legal Aid, Sentencing and Punishment of Offenders Act 2012 came into force on 3 December 2012.

The Recorder did not specify under which provisions of the 2003 Act he was sentencing, but the record incorrectly states that an indeterminate sentence of detention for public protection was imposed pursuant to section 226 of the 2003 Act. That provision only applied to offenders who were under 18 at the date of conviction. The appellant was aged 19 at all material times. The relevant section of the Act was therefore section 225.

The version of section 225(1) of the Criminal Justice Act 2003 in force at the time of sentence provided that where a person aged 18 or over is convicted of a serious offence and meets the statutory criteria of dangerousness- that is, the court is of the opinion that there is a significant risk to members of the public of serious harm being occasioned by the commission by him of further specified offences - then if the offender would otherwise be liable to imprisonment for life, but a life sentence is not justified, the court may (our emphasis) impose a sentence of detention in a young offender institution for the protection of the public if the offender had previously been convicted of a Schedule 15A offence, or the notional minimum term is at least two years' custody.

As an alternative to such an indefinite sentence, section 227 of the 2003 Act gave the sentencer a discretion to impose an extended sentence for certain violent or sexual offences, including offences committed under section 63, in circumstances where a person aged 18 or over was convicted of a specified offence, but the court was not required by section 225(2) to impose a sentence of imprisonment for life. The conditions were that at the time the offence was committed, the offender had either been convicted of an offence specified in Schedule 15A, or the term that the court would specify as the appropriate custodial term would be one of at least four years' custody. The latter condition was met in the present case. Were he to find the appellant dangerous, and a determinate sentence insufficient to meet the risks he posed to the public, the Recorder therefore had available to him the option of an extended sentence for public protection instead of an indefinite sentence for public protection.

There was a Pre-Sentence Report at the time of sentence. The appellant stated that he was intoxicated and under the influence of drugs, that he was not looking to target any house or property, and he had decided to gain entry to see if there were any valuable items to steal. He could not explain why he did not steal anything. He denied intending to perpetrate a sexual offence. He could not explain why he accessed the computer or why he returned to the property the following evening. The author of the report considered that the appellant was minimising his actions and was concerned that the appellant had previously been linked to a number of serious sexual offences against children, although these had not resulted in any convictions. The author concluded that he had acted in a predatory manner and displayed disturbing thoughts and actions and was prepared to take great risks. The report writer felt that the appellant's use of drugs and alcohol had merely given the appellant the confidence to carry out an act that he had been thinking about for some time. The report writer had not had sight of the psychiatric report.

The appellant was assessed as posing a high risk of serious harm and he passed the significant risk test contained within the dangerousoffender provisions in the Criminal Justice and Immigration Act 2008. The appellant did not have a previous conviction for another offence listed within the dangerousness provisions of the Criminal Justice Act 2003 and so the report writer recommended that if a term in excess of 4 years could be imposed an extended sentence for the public's protection could be imposed. The report writer recommended that this would be an effective way of reducing the appellant's risk. In the alternative a standard determinate sentence was recommended.

There was also a psychiatric report before the court, the appellant having been assessed on 26 January 2012. The doctor concluded that the appellant was not suffering from a mental disorder that required treatment in a hospital. The appellant had a diagnosis of Attention Deficit Hyperactivity Disorder (ADHD), which was not causing the appellant any significant symptoms. However, if his ADHD were to worsen it could be treated effectively in prison. He recommended that the appellant be assessed for a sex offender treatment programme, although recognised that the appellant's partial denial might reduce his suitability for the programme. However, the doctor felt that without specific treatment interventions, the risk of further offending must be significant.

In his Sentencing Remarks, the Recorder identified the aggravating features were that the family were at grave risk, that the offending occurred over two consecutive nights, the appellant's clear intent to commit the offence and that he was armed. He also noted the trauma and impact of the offending upon C and her family. He identified the mitigating features were that the appellant did not go on to commit a sexual offence. The Recorder was not sure that the appellant's intention was to commit a penetrative sexual act and so he did not sentence him on that basis. He took into account the appellant's youth and gave him credit for his guilty pleas.

The Recorder considered the sentencing guidelines for the offence and determined that the range for a single offence was 1 to 4 years' imprisonment (though here he was sentencing for two such offences). He considered the appellant's lack of previous convictions but found that there were worrying aspects of him previously coming to the attention of the police for sexually related offending. The Recorder made reference to the fact that the appellant's then counsel accepted that the appellant posed a risk of such offending and that the appellant was in denial about his true sexual proclivities.

The Recorder indicated that because there were two section 63 offences committed on consecutive nights (which indicated a clear determination to carry through on the second night that which the appellant had formed the intention to carry out on the first) the appropriate custodial term would have been six years. He made it clear that this was the notional determinate sentence after taking into account the specific mitigating features he identified, including the appellant's youth and modest offending record, and credit for his guilty plea.

That assessment was in line with the then applicable sentencing guideline to which the Recorder referred and to which he obviously paid regard. The Definitive Sentencing Guideline issued by the Sentencing Council only applies to offenders sentenced on or after 1 April 2014, and the range of sentences under that guideline would have been higher.

The Recorder, having the benefit of the Pre-Sentence Report and the psychiatric report each of which supported a finding of dangerousness, made a finding of dangerousness.Mr Beechey realistically does not suggest that such finding was not open to the Recorder.

THE GROUNDS OF APPEAL

The grounds of appeal (settled by Mr Beechey) are that the Recorder:

Further to the directions of the full court when granting leave, the Prosecution have lodged a Respondent's Notice and Grounds of Opposition in which they submit:

Turning to the grounds of appeal, the real gravamen of Mr Beechey's submissions is that the Recorder erred in imposing an indefinite sentence, rather than the extended sentence which was recommended by the author of the Pre-Sentence Report. An extended sentence would have extended the normal period of licence to which the appellant would be subject after he was released automatically upon having served what was then half the custodial term. By contrast, once the specified minimum term had been served, an indefinite sentence would leave it to the Parole Board to decide when the risks posed by the appellant were sufficiently reduced to enable him to be released on licence, and, once released, he would remain on licence for the rest of his life.

Mr Beechey submits that the Recorder failed properly to take into account the appellant's relatively young age at the time of the offending and to have proper regard to the prospect that he would mature and change while subject to the custodial term and an appropriately extended licence period, thereby reducing the risk to the public which a finding of dangerousnessindicated that he would continue to pose. The appellant was very lightly convicted. He had no antecedent history of violent or sexual offending, and he had never undergone any previous custodial sentence.

Whilst he accepted that the appellant, despite pleading guilty, had continued to deny the sexual element of his offending, and that this could affect his suitability for treatment on a sex offender programme and thus the ability to address and reduce the risk he posed, Mr Beechey pointed out that that denial could itself have been due to his age and immaturity, and he relied on the fact that the author of the Pre-Sentence Report, who was aware of all these matters, had still recommended an extended sentence. Mr Beechey also pointed out that the Sexual Offences Prevention Order and other ancillary orders were a potential means of reducing the risk posed by the appellant.

Mr Beechey further submitted that the Recorder failed to give any or any adequate explanation as to why he had discounted an extended sentence as an appropriate disposal. All that the Recorder said was this:

The Recorder did not explain why he considered an extended licence period would not suffice to meet the risks posed to the public which he had identified.

DISCUSSION

As the full court before us stated when granting leave to appeal, this was, on any view, a disturbing case, but it was also an extremely difficult sentencing exercise because of the appellant's age and background. The real difficulty faced by the Recorder when considering whether an extended sentence would suffice to meet the risk that he posed was that the appellant gave no explanation for what caused him to act as he did, and in particular what it was that drove him to go back to the house on the following night. This meant that the probation officer and the psychiatrist had very little information to enable them to ascribe his offending to a lack of maturity or to calculate the risk that he might pose in the future. This in turn meant that the Recorder had little or no information about the steps that the Probation Service could take to address the risks posed to the public by the appellant following his release. In such circumstances it was difficult for the Recorder to assess what protection would be needed for the public when considering whether to pass a determinate sentence, an extended sentence or an indefinite sentence. The full court when granting leave considered it arguable that the Recorder did err in principle in passing an indefinite sentence on the facts of this particular case.

The appellant was not released on licence until 2022. He was recalled to prison in June 2023 when a complaint was made that he had sexually assaulted a female (someone he knew and with whom he was socialising). It was understood that the matter was still very much under investigation by the police, and no charges have been brought against him in relation to that. The appellant had given a full comment interview in which he denied any offending and contended that any sexual interaction was consensual.

The directions given by the full court when granting leave have meant that we now have far more information available to us than was available at the time leave was granted.

Further to the directions given, a prison report has been obtained, dated 27 January 2025. The offender manager reports that the appellant has an enhanced status. He has demonstrated positive conduct, and he engages with and is polite to staff. He has not received any adjudications since his recall to prison. The appellant's last adjudication was in March 2022, for possession of an unauthorised article (designer clothing).

The appellant had 13 positive behaviour entries for working on the servery, peer support and his work in the Care and Separation Unit (CSU). He has made constructive use of his time and maintained employment on the servery and as a cleaner on the wing. He has completed a vehicle maintenance course. He has a trusted role on the CSU as an education orderly.

The appellant has matured given that at the start of his original sentence his conduct and attitude were problematic. The appellant has spent an extensive amount of his life in custody and reports that this has changed his views, although he is frustrated and feels as though he is in "limbo". Despite his frustration there are no concerns raised, and he continues to demonstrate positive conduct. The appellant has completed the "Living as New Me" programme, which is an adapted sexual offending treatment programme.

A pre-appeal report has been obtained, dated 6 March 2025. The appellant's probation officer has assessed the appellant as posing a high risk of serious harm to the public and a medium risk of serious harm to children. He is a low risk of serious harm to known adults, staff and himself. He scored a low risk of serious recidivism (2.68%), but the probation officer found that this was influenced by the appellant's age and low number of actual convictions and did not properly represent the risk he posed. He scored a high risk of further conviction for contact sexual offences which the probation officer found was more representative of his current risk factors.

Further to the directions made by the full court on 15 January 2025, the Prosecution have since provided a bundle of documents which include the Parole Board decision of 20 July 2022 concerning release of the appellant, the Recall Report dated 20 June 2023, various post-recall risk management reports, a number of OASys risk assessments in 2023 and 2024, representations submitted to the Parole Board on behalf of the appellant, dated 9 September 2023, 8 February 2024 and 26 June 2024, and a letter from the appellant to the Parole Board immediately after his recall.

Both the appellant and the prosecution have provided individual proposals for a SOPO should we be minded to allow the appeal.

Following his release on licence it appears that overall his compliance and engagement with probation and partnership agencies he was referred to was positive, he did not miss any appointments and engaged well in sessions. He had secured accommodation and was looking to commence further training and education to build on his work skills. Feedback on attendance and engagement was always positive, with no concerns.

Also included within the bundle is further information concerning the allegation that was made which led to the appellant's recall. We do not consider it either necessary or appropriate to set out further detail about the allegation. It remains under investigation and no charging decision has been made.

Whilst the appellant is frustrated about the delays that have resulted, as we have already noted, the evidence from the prison report of 27 January 2025 is that notwithstanding his recall to prison, the appellant has demonstrated positive conduct, and he engages with and is polite to staff. It is regrettable that there remains no certainty as to whether the appellant will or will not be charged, and the continued uncertainty in that regard has also impacted upon his ability to be considered for release on licence.

Events subsequent to sentence, and an offender's progress in prison, can be of relevance on an appeal, particularly in circumstances where one possible outcome of an appeal is that an appellant may be released into the community. We are grateful for all the additional information that has been provided to the court since the full court granted leave to appeal against sentence.

We remind ourselves, however, that what is being considered on this appeal is whether the Recorder was wrong in principle in passing an indefinite sentence of detention in a Young Offender Institution rather than an extended sentence, as proposed by the author of the Pre-Sentence Report or whether such a sentence was manifestly excessive in the context of the facts of the appellant's offending, and the circumstances as pertaining at the time of sentence.

At the time that this sentence was passed, the court could not have predicted the practical problems which subsequently beset prisoners subject to indefinite sentences, and inhibited or even precluded them from demonstrating to the satisfaction of the Parole Board that they were safe to be released on licence, leading to their spending far more time in custody than the minimum sentence pronounced by the court.

It is regrettable that these problems have arisen, but they cannot justify a finding that the indefinite sentence was wrong in principle or manifestly excessive at the time when it was passed. The question for this Court is not whether or not we would have passed an extended sentence; rather it is whether the indefinite sentence passed was wrong in principle or manifestly excessive in the circumstances of the case and the offending in question as known to the Recorder at the time of sentence.

In this regard, and in order to assess whether the sentence was wrong in principle, the Court should have regard to Attorney-General's Reference No 55 of 2008 (R v C and others) 2 Cr App R(S) 22 at [20]:

In R v Roberts [2016] 1 WLR 3249 the Lord Chief Justice emphasised that since the Court of Appeal (Criminal Division) was a court of review, its function was to review sentences imposed by courts at first instance and to determine whether they were wrong in principle or manifestly excessive, not to conduct a sentencing exercise of its own from the beginning. It had not been established to consider, and was not constituted to consider, years after the sentence and in the light of what has happened over that period, whether an offender should be sentenced in an entirely new way because of what had happened in the penal system or because the offender had supplied information long after conviction.

The question for this Court is therefore whether the sentence imposed was wrong in principle for this offending, given the information that the Recorder had before him at the time.

This was, on any view, very serious, and very troubling, sexual offending. The offences were committed in C's own home late at night. A sharp weapon was taken upstairs which the Recorder was satisfied would have been used by the appellant, if required, although he was hoping to find his target asleep. However, despite the content of the pornography which was viewed by the appellant, the Recorder treated this as a case of planned sexual assault which did not necessarily involve penetration, and we must be true to the basis on which the Recorder sentenced. The sentencing exercise was made more difficult by the appellant's lack of explanation as to what had caused him to act as he did.

The appellant had a troubled personal history, but he was only lightly convicted. He was also only 19 when he committed the offences, and as such he was not fully mature. The likelihood was that he would mature and would continue to mature over the next few years. It would also be his first period of time in prison which would no doubt be salutary. He would be likely to present a lesser risk when he was released on licence. Whilst a finding of dangerousnesswas clearly appropriate, an extended sentence would, on the facts of the case, have provided appropriate protection to the public. We consider that the Recorder would have recognised this had he addressed whether there were reasons justifying the imposition on an indefinite sentence, as opposed to an extended sentence. In doing so we consider that he would have recognised that the public would be sufficiently protected by an extended licence accompanied by a suitably drafted SOPO.

Whilst we can understand why a sentencer might be tempted to take the view that, despite the appellant's young age and lack of relevant past offending, it would be preferable for the Parole Board to consider and assess the risks at the appropriate time, particularly if the minimum period of sentence to be served was relatively short, as it was, we do not consider that in this case the Recorder sufficiently assessed the risk that the appellant would present upon release which was a matter he should have grappled with, and assessed when deciding upon the appropriate sentence, and how the public could be protected from the risk he presented.

In this regard we consider that the Recorder focused too closely on the facts of the offences rather than future risk in rejecting an extended sentence, coupled with an appropriately drafted SOPO, as the appropriate sentence to best reduce the risk of future harm.

In this regard the SOPO that was imposed prohibited the appellant from:-

Sight should also not be lost of the fact that the sex offenders registration requirements themselves go to mitigate the risks a sex offender presents to the public. They are to notify their local police station of their name(s), address(es), date of birth and NI number. They must notify from time to time any address which they occupy for any period or periods totalling seven days in any year, and must do so every time before they travel, whether on work, on holiday or otherwise. They must give prior notification of any travel abroad, and provide details and place of accommodation. They must attend personally to give these various prior notifications, and must submit to fingerprinting and photographing for identification purposes. There are also the vetting and barring requirements in the Vulnerable Groups Act 2006.

Every case will turn on its own particular facts, but on the facts of this case, we do consider that the Recorder did err in principle in passing an indefinite sentence.

The question then arises as to what sentence we should substitute. Given the length of time that the appellant has already served in prison, whatever extended sentence we pass (which cannot exceed the maximum sentence of 10 years' imprisonment for a single offence) will already have been served, with the result that this aspect of the sentence will not involve the appellant receiving the assistance of the Probation Service upon his release.

However an extended sentence would have been the appropriate sentence with a suitably drafted SOPO (which were replaced in March 2015 by Sexual Harm Prevention Orders). As noted above, the SOPO accompanying the indefinite sentence only had limited prohibitions, and was also "until further order" (i.e. without limit of time). We consider that on the facts of the present case (and in the context of an extended sentence) it would not be appropriate to make an order "until further order", but rather a fixed time limited order but containing additional prohibitions which will reduce the risk of offending and protect the public.

We accordingly quash the indefinite sentence on Count 1 and quash the SOPO. We substitute, on Count 1, an extended sentence pursuant to section 227 of the Criminal Justice Act 2003 of 9 years comprising a custodial term of 6 years and an extended licence period of 3 years, and substitute for the original SOPO, the SOPO set out below. The sentences passed on Counts 2 and 3 remain unchanged.

The terms of the SOPO which is to run from the date of original sentence (2 March 2012) until 17 June 2035 are as follows:

To that extent the appeal against sentence is allowed.