R v M

The provisions of the Sexual Offences (Amendment) Act 1992 apply in this case. That means that nothing may be published during the lifetime of either of the victims in this case which identifies them as having been victims of sexual offending. That prohibition will continue unless it is varied by the court, and there is no reason whatever to think it ever will be.

This is a Reference under section 36 of the Criminal Justice Act 1988 by HM Solicitor General. She seeks leave to refer a sentence on the ground that it is unduly lenient and that having been referred it should be increased.

The offender is DM who is now aged 38. (We will at the conclusion of the hearing ask counsel to assist us on whether publishing his name risks breaching the anonymity of the two victims. We will return to that once we have given judgment.)

On 19 December 2024 the offender was sentenced by His Honour Judge Singh in the Crown Court at Grimsby to 14 years' imprisonment for 18 serious sexual offences against two children. They were sisters. The younger, whom we will call AB, was 11 years old and the older, whom we will call CD, was 13 years old. He had been convicted after a trial for the 11 most serious offences and had pleaded guilty to seven others. The judge gave full credit for those pleas when imposing sentence but since all the sentences which he imposed were ordered to run concurrently and the sentence imposed on count 16, a multiple-incident rape count involving the victim CD, the amount of credit has no direct impact on the sentence passed by the judge.

The indictment was somewhat complex and it is necessary to set it out in a little detail. Counts 1, 2 and 3 were all counts of sexually assaulting AB, who was under 13 at the time when these offences were committed, contrary to section 7 of the Sexual Offences Act 2003. Count 1 was an offence of touching her vagina over her clothing. Counts 2 and 3 were allegations of touching her vagina under her clothing so that the offender made direct contact with her genitalia. He pleaded guilty to these three counts and the judge imposed sentences of 26 weeks for count 1 and two years on each of counts 2 and 3, all to run concurrently and concurrent with all the other sentences in respect of CD. Those three counts constitute the totality of the offending involving AB which occurred over six or eight weeks in the early summer of 2024.

We now move on to the offences against CD which are very much more serious. In saying that, we do not minimise the seriousness of the offending against AB. It will become apparent that what happened to CD was at a wholly different level.

Counts 4, 5 and 6 were allegations of sexual activity with a child, contrary to section 9 of the Sexual Offences Act 2003. CD was 13 at the time when they happened. These three offences were part of what has been called "the first incident". Subsequent counts, to which we will come in a moment, also relate to that incident. So that occasion, the first time when offending took place against CD, involved very serious offences indeed.

These three counts - 4, 5 and 6 - relate to the start of this very serious episode. She was at the time asleep in bed, staying at the offender's home. He was regarded as the stepfather of these two girls and was trusted by their mother to look after them and they were happy to be with him, at least until all this happened. She was asleep in a flat with only the offender as company. There was nobody that she could call for help and she could not realistically escape in those circumstances. Count 4 involved touching her breasts, count 5 touching her vagina and count 6 touching her bottom. This was both over and under her clothing. She said that she was stripped naked during this incident. The offender was convicted after the trial in respect of count 4 but pleaded guilty in respect of counts 5 and 6. The sentences here were two years on each of counts 4 and 5 and 26 weeks on count 6, all concurrent with each other and concurrent with all the other sentences in the case.

Counts 7, 8, 9, 10 and 18 all relate to this first incident. Count 7 was an allegation of penetrative sexual activity with a child, contrary to section 9 of the Sexual Offences Act; this involved digital, that is his fingers penetrating her vagina. He denied that offence and was convicted by the jury. The sentence was five years' imprisonment concurrent with other sentences. Count 8 was an offence under the same provision, involving penetrating her anus with his finger. Also, on the same occasion, he was convicted of this by the jury and the sentence was five years concurrent. Counts 9 and 10 were both rape counts. During the same first incident the offender raped CD vaginally and anally. He was convicted by the jury and sentenced initially to nine years' imprisonment concurrently on each which was to run concurrent with all the other sentences. Those sentences were reduced to eight years in respect of each count at a slip-rule hearing for reasons which it is unnecessary to explain. By count 18, also arising from the first incident, the offender was alleged to have caused a child to engage in sexual activity, contrary to section 10 of the Sexual Offences Act 2003. He persuaded CD, by telling her to put her hand on his penis, to masturbate him, which she did. He was convicted of this by the jury and a concurrent sentence of 26 weeks was imposed.

That concludes the first incident.

Count 11 was a multiple-incident count, as were the majority of the counts which remain. It alleged sexual activity with a child, contrary to section 9 of the 2003 Act. The allegation was that he had touched CD's breasts on at least five occasions other than count 4. He was convicted of this by the jury and sentenced to two years' imprisonment concurrent. Count 12 was another allegation under the same provision and was again a multiple-incident count. It alleged touching CD's vagina on at least five occasions other than count 5. He pleaded guilty to this and received a concurrent sentence of three years. Count 13 was another multiple-incident count under the same provision, alleging touching her bottom on at least five occasions other than count 6. He pleaded guilty to that, and a sentence of imprisonment of one year concurrently was imposed in respect of it.

Count 14 was another multiple-offending count, this time alleging penetrative sexual activity with a child, contrary to section 9 of the 2003 Act. It was alleged that he had penetrated her vagina with his fingers on at least five occasions other than count 7. He was convicted of this by the jury and sentenced to eight years' imprisonment. Count 15 is another multiple-offending allegation under the same provision involving penetrating CD's anus with his fingers on at least five occasions other than the specific charge earlier in the indictment relating to the first incident. He was convicted of this and a further sentence of eight years' imprisonment ordered to run concurrently was imposed.

Count 16 was an allegation of vaginal rape of CD. She was over 13 at the time so it was charged as an offence contrary to section 1 of the Sexual Offences Act 2003. It is a multiple-incident count alleging at least three rapes in addition to the rape which is reflected in count 9. He was convicted of this by the jury and received a sentence of imprisonment of 14 years. That offence, that multiple-incident count of rape, was treated by the judge as the lead offence so that the proper approach was to impose a sentence on it which reflected all the criminality and then having done that to order the other sentences to run concurrently.

One of the issues which we are asked to consider is whether, having adopted that approach, that term of 14 years did reflect the total criminality with which the judge was dealing.

Finally, count 17 was an allegation of anal rape against CD. This alleged a single incident but was an incident in addition to the anal rape alleged in count 10. He was convicted of this offence by the jury and received a term of eight years concurrently.

The total sentence, therefore, was 14 years' imprisonment. Other orders were made as is usual in cases of this kind but it is not necessary for us to set them out.

Mr Hookway, appearing before us for HM Solicitor General, in arguing this Reference submits that the sentence we have just described was unduly lenient, essentially for two reasons. First, the rape offences against CD were wrongly categorised. They were sentences from the basis that each individual offence was an offence within category 3A in the guideline but should have been categorised within category 2A given the victim's particular vulnerability due to personal circumstances, primarily age. That is a guideline factor which, if present, raises the categorisation from category 3 to category 2 and Mr Hookway contends that it plainly was present and, therefore, the judge selected the wrong category.

The second submission that is made is that there was insufficient upward adjustment to reflect the totality of the offending, particularly the fact that there was a second victim.

It is unnecessary and probably undesirable to set out the facts of the offending in any further detail. The brief description of the offending which we have given when going through the indictment earlier in this judgment adequately captures what he did.

A little extra needs to be said notwithstanding. The relationship within which the offending took place is obviously important. The mother of the two victims, whom we will call DE, met the offender eight years before the offending began or thereabouts, and they began a relationship. He moved in with her and her six children shortly afterwards. From then on until these offences came to light they remained in a relationship. The offender did not live with the family throughout the period. Instead, as has been said, he retained his own property which he shared with his mother. This is apparently because he did not get on particularly well with all the children. He was nevertheless an active presence, helping to raise the children, particularly AB and CD. He would stay with them unsupervised at DE's address and they would go and stay with him at his address at weekends.

On 24 May 2024 DE was at home. During the early evening the offender was sitting on a sofa in the living room. AB was also there, snuggling up with the offender. She had a grey blanket over her and DE saw his hand under the blanket near her stomach area. When CD came into the room the offender quickly withdrew his hand. DE was suspicious as a result of what she had seen, and she saw something similar the following day. On the day after that she decided to speak with AB. AB disclosed to her mother that the offender had touched her vagina. DE then spoke to CD who confirmed that she also had been sexually abused by the offender. He was not in the house at that time but returned home soon afterwards. DE refused to let him in. She told him that he would know what it was about. There was an argument. He left. He then left a voicemail which mentioned the girls, the police and him going to prison. That was before DE had actually told him what the accusations were that she wanted to talk to him about. She called the police.

The offender was arrested and interviewed. He confessed to sexual touching, both of AB and CD. He said that it happened on two or three occasions with each of them. He touched their vaginas, both over and under clothing. He said the last time it happened with AB was on 25 May 2024 while DE was in the shower. He denied any penetrative sexual activity with either of them. He said he knew it was wrong and could not explain what had driven him to do it.

AB, in fact, did not make any formal complaint or record any evidence about what had happened to her. Therefore, the offender was convicted in relation to counts 1 to 3 simply on the basis of what he had said in interview.

CD was then interviewed in the usual way in a video-recorded conversation. She set out in full the allegations she made and which later found their way on to the indictment, as we have said. She said that there had been one incident in particular when she had summoned up the courage to push him off and he had left the room. She was upset and disgusted, not least because on that occasion she was feeling unwell with tonsillitis. She said that the offender had also said inappropriate things to her such as, "I love you in a way that I shouldn't" and "Can't keep my hands off of you", "I love you more than I love your Mum." She said that he had a collection of four knives on a belt in his room and he had once told her to take a knife and put it under her pillow so she could use it against him. He then referred to cutting his own throat and started to cry. Later that night he messaged her saying he would only kill himself on his motor bike. He had then ridden away on the bike, and CD was so concerned that she asked her mother DE to contact him.

On another occasion, when they were together at McDonald's, he asked CD whether she wanted him to hand himself in. She said that she felt little choice but to say no.

The offender has three previous convictions for five offences: wounding with intent in February 2005; battery in February 2016; and criminal damage and battery on 15 December 2016 that had resulted in a conditional discharge of which he was in breach by virtue of some of his offending.

There was a pre-sentence report before the judge which said, among other things, that the conviction from December 2016 for criminal damage and battery related to an offence against DE, the girls' mother. The author of the report identified elements of grooming behaviour because the offender would buy these girls gifts and take them on days out and invited them to come to his accommodation to stay overnight unsupervised.

When asked by the author of the pre-sentence report why he had committed these offences he was unable to explain it. He said he was not sexually attracted to either victim and things would not have escalated if CD had immediately reported him to the police. The author, unsurprisingly, concluded that that appeared to be an evasion of responsibility and an attempt to blame CD for the offences which he had committed against her. The author of the pre-sentence report was not impressed by this attitude. The report does say that the offender is able to recognise the emotional impact on the victims and how it might impact their ability in the future to form normal healthy relationships. He continued to deny rape or any digital penetration, notwithstanding the fact that by this stage he had been convicted of those offences. He described a troubled upbringing and a number of mental health difficulties and family tragedies which had caused him grave upset. He showed some remorse but did not entirely recognise the seriousness of the harm that he had caused.

The report concluded that he poses a high risk of serious harm to pre-pubescent and teenage females.

The sentences were as set out above and constructed in the way that we have already described. The judge was required to follow the relevant steps in the various offence guidelines which were appropriate to the various offending. Obviously, the most serious aspect of this case was repeated vaginal and anal rape of CD so the judge started with the guideline for rape. He found, correctly, that this was a case which involved abuse of trust, that is culpability A. During the hearing the judge was persuaded to change his mind about his approach to the categorisation of harm. The guideline factor which might place this case into category 2 is "victim is particularly vulnerable due to personal circumstances* (*for children under 13 we refer to the guideline on rape of a child under 13)".

Counsel before the judge argued that point. The prosecution submitted that it was category 2 harm because CD was particularly vulnerable due to her age. She was as young as it is possible to be and still be dealt with under this guideline. Defence counsel challenged that and successfully persuaded the judge that that was wrong. He said:

That categorisation of each of these rape offences generated a starting point of seven years' imprisonment with a range of six to nine years. The judge increased that by one year to reflect CD's age. The sentences for individual offences were, therefore, eight years. But that figure was increased to 11 to reflect the totality of the rape offences. There were six: four offences of vaginal rape and two of anal rape. So, taking into account thus far only the rape offending, the judge arrived at the sentence of 11 years.

The judge then had to categorise the other somewhat less serious offences, some of which remain offences of a very high degree of seriousness. These were all in culpability A because all guidelines identify abuse of trust, which was present in this case, as a culpability A factor. Some of the offences were category 1 harm and others were in lower categories. In the end, the individual categorisations of these offences were of less significance than the evaluation which was required of the judge to stand back and look at the totality of the offending and arrive at an appropriate overall sentence. The guidelines are of assistance in that process. It is entirely appropriate for the judge to go through it, but in the end a more open evaluation is required to categorise and reflect offending on this scale.

Having done that, the judge identified some factors increasing seriousness and some factors reducing seriousness. Increasing seriousness were: previous convictions, they, according to the judge, did not aggravate the offending to any great extent and it is not submitted that that was an error of judgment; the location of the offending, particularly when it took place at either the girl's own home or at the offender's home, is an aggravating factor but the judge said that the finding of breach of trust adequately dealt with that and, therefore, no further adjustment was required in that regard. The judge did identify a level of emotional blackmail implicit in the offender's references to self-harm or suicide when talking to CD. This conduct is not specifically referred to as an aggravating factor but it is right to say that blackmail and steps taken to prevent a victim reporting abuse are both listed in the rape guideline as aggravating factors. The judge noted that there was no evidence to prove the aggravating factor of ejaculation on any of these occasions.

The only substantial mitigating factor, apart from the guilty pleas where they had been entered, was the early admissions of some of the offending in interview. The judge regarded that as a significant mitigating factor notwithstanding that accompanying those admissions were dishonest denials of a great deal of very serious sexual offending.

The judge considered, as he was required to do, the question of dangerousness and decided that an extended sentence in this case was not necessary.

As a result of all that, the judge then returned to his 11 years' imprisonment in respect of the totality of the rape offending and increased it to 14 years in respect of count 16. That increase was intended to deal with all the rest of the offending. He said in relation to the rape offending:

The judge then considered whether there should be a further upward adjustment in relation to the offending against AB. That term of 14 years, which the judge made quite clear in the passage just cited, related to the offending against CD. He decided that no further upward adjustment was required and said:

So the position was made clear that the sentence on the lead offence (count 16) was not increased to reflect the offending against AB and neither were the substantially discounted sentences of two years to reflect that offending ordered to run consecutively.

In advancing his grounds, which we have already summarised, Mr Hookway has drawn to our attention to a decision of this court in R v Saunders [2022] EWCA Crim 264 in reviewing the guideline factor of harm which we are considering, namely particular vulnerability. Lord Justice Holroyde said:

If the judge had acceded to the submission that the correct categorisation of these offences was category 2A there would have been a revised starting point of 10 years and an extended range up to 13 years for a single offence.

In this case there were two victims. On the judge's approach to the case, the offending against CD warranted sentences totalling 14 years and the offending against AB had a starting point of four years for a single offence. The judge's sentence for counts 1 to 3 involving AB totalled two years. That reflected the earlier admissions and the pleas and, perhaps, some further adjustment for totality. The judge's remarks make it clear that he did not increase the sentence on the lead offence in relation to CD to take account of the offending against AB. The offender has, therefore, received no punishment at all for what he did to AB who was 11 years old, and the offending was serious and a breach of trust.

We consider that in taking that approach the judge fell into error, but it by no means follows that the sentence that he arrived at at the end of the sentencing process was unduly lenient.

We consider that it is right in principle in the case of multiple victims either to make it clear that the sentence on a lead offence has actually been increased to take account of the offending against other victims than the victim named in that lead offence count, or to order the sentences for those other victims to run consecutively. Consecutive sentences in such cases are appropriate. Sometimes they has the drawback that adjusting for totality in those circumstances produces an inappropriately short sentence. But that is a consequence which careful thought can avoid.

So, with respect to the learned judge, whose approach to this case was a careful and principled application of the guidelines, we consider that there was an error in the way that the sentences were presented which might have given AB the unfortunate impression that the offending against her did not matter very much. We also consider that the offending against CD should have been categorised as offending against a person who was vulnerable due to personal circumstances. She was 13 years old and, therefore, falls to be dealt with under the guideline which deals with all offences against all victims whatever their age as long as they are over 13. In the context of that cohort of victims, CD was at the very youngest end of the age range clearly. Being so young at the time when she was raped was a vulnerability factor and it was a particular vulnerability factor. We do not ascribe the same weight to the word "particularly" in the guideline factor as the judge did. The way that guideline factor is expressed specifically refers the sentencer to the other guideline for rape offences against victims who are under 13, if that is the position. Quite clearly, the Sentencing Council, in expressing those factors in that way, have in mind age as being a material factor for the purposes of deciding whether a person is particularly vulnerable.

Again, however, the mere fact that the judge may have made what we have found to be an error in categorising these individual offences does not mean that the end result was unduly lenient. As we have said when describing the facts, the submissions and the judge's approach, the judge is required to follow the guidelines plus go through the steps, as this judge did. But in the end, in a case of multiple offences against more than one victim, the most important part of the exercise is that which takes place at the end. This is an assessment of what is a proportionate sentence to reflect all of the offending. As long as the sentence passes that test then the fact that it may have been constructed or expressed in a way which suggests the judge fell into some errors is immaterial.

So the question that we have to ask ourselves is whether the sentence of 14 years' imprisonment for these offences against these two victims was unduly lenient bearing in mind all the factors which are relevant to that assessment which we have identified in this judgment. We have concluded that the judge's final global sentence was lenient and we consider that many judges would have imposed a somewhat longer sentence but we do not consider that those judges would have been driven to impose a sentence which was so much longer than the judge's sentence that this should lead to the conclusion that the judge's sentence was unduly lenient. We consider that it was lenient but not unduly so.

In those circumstances we give leave to the Solicitor General to refer this case but we dismiss the Reference. The sentences imposed by the judge will stand unaltered.