R v Frank Burton

The provisions of the Sexual Offences (Amendment) Act 1992 apply to these offences. Under those provisions, where 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 appellant is now 58 years old. He was 57 when he was sentenced. On the first day of trial at Stafford Crown Court he pleaded guilty to three counts on a seven-count indictment of historic child sexual offences which took place in the 1980s. The remaining counts were ordered to lie on the file against him in the usual terms.

Each count related to a separate complainant to whom we shall refer as A, B and C respectively. The appellant was aged between 19 and 23 at the time of the commission of the offences. Each of the complainants, now grown men in their forties, was under 10 years old. A was between five and eight years old, B (his brother) between six and nine years old and C was nine years old. In each case the appellant was allowed by a parent or other responsible adult to be alone in charge of the child on the assumption that they would be safe with him.

Each count to which the appellant pleaded guilty was a count of indecent assault on a male person, contrary to section 15(1) of the Sexual Offences Act 1956, an offence which carried a maximum sentence of 10 years' imprisonment. The nature of the offending was strikingly similar in each case: the appellant pulled down the child's trousers and rubbed his erect penis between the cheeks of the complainant's bottom. There was no penetration.

The offences against A and C took place in the appellant's car when the child in question was sitting on his lap. The offence against B took place in a bedroom where the appellant pushed B face downwards onto the bed and then pulled down his trousers. On that occasion B says that the appellant was interrupted by someone coming up the stairs. Afterwards the appellant gave them sweets or gifts, which in hindsight the victims now believe to have been inducements to keep quiet about what had happened to them.

On 31 May 2024 the appellant was sentenced by Recorder Fowler (“the judge”) to five years and 10 months' imprisonment on each offence to run concurrently. He appeals against sentence by leave of the single judge on the grounds that the sentence passed was manifestly excessive.

On behalf of the appellant, Miss O'Reilly submits that it is well established that in sentencing historic offences, the court should sentence by measured reference to any equivalent current guideline. In this case the Crown and the defence had agreed that the equivalent current guideline was that pertaining to the offence of sexual activity with a child, contrary to section 9 of the Sexual Offences Act 2003. For a Category 2A offence (as it was agreed all these offences were) that would have given a starting point of three years with a range of four to six years after trial.

However, the judge used the guideline for sexual assault of a child under 13, contrary to section 7 of the Sexual Offences Act 2003. He placed the offending into Category 2A within that guideline, which has a starting point of four years' custody and a range of three to seven years. He appears to have increased that starting point by a further two-and-a-half years to reflect the aggravating and mitigating features that he identified, and then applied a little over 10 per cent credit for the late guilty plea to reach the sentence of five years and 10 months on each count, which he made concurrent to reflect totality.

Miss O'Reilly not only submits that that was too high, but she also submits that the judge attached insufficient weight to mitigating factors, including the appellant's lack of previous convictions, his age at the time of the offending and, to an extent, his apparently blameless life in the period since these offences were committed. She reinforces those submissions by reference to a prison report in which the appellant has been described in very positive terms. He has displayed a constructive attitude towards his imprisonment, and he has been actively involved in work placements within the prison, where his work ethic has been described as "commendable". He has also shown a commitment to self-improvement by participating in courses designed to improve his reading and literary skills, and in April 2025 he was scheduled to begin a decorating and painting course. Input from education staff and other relevant personnel highlights his cooperative nature and dedication to rehabilitation

Having carefully read the achieving best evidence interviews of the complainants, we do not consider that the judge fell into error in choosing the section 7 offence as the nearest modern parallel to the offending in this case. It might have been better had he given the parties forewarning that he was going to take that course, given that (for reasons which are not entirely clear) the Crown had agreed with the defence that the appropriate equivalent modern offence was section 9, but he did not err in principle.

All the children concerned were aged under 13 at the time. Section 9 offending is not specific to children under 13, whereas section 7 offending is. None of these children was induced by the appellant to engage in sexual activity with him. It happened against their will in circumstances where one of the children (A) described clenching his bottom to prevent the appellant from penetrating him from behind. The judge was therefore entitled to approach this on the basis that all three offences were section 7 offences and to take the starting point of four years for each of them.

However, some downward adjustment was required to take account of the fact that the maximum sentence for a section 7 offence, and indeed for a section 9 offence, is one of 14 years' imprisonment, and not 10 years, which was the maximum available sentence for the offences to which the appellant pleaded guilty. The judge referred to this difference. He said that it imported "a significant element of mitigation" for the appellant. He then said that he had regard to the "current guidelines that carry a 10-year maximum". It is not clear whether he was referring to guidelines for other sexual offences involving children or referring to the fact that the maximum available sentence under the guidelines for a section 7 offence is one of nine years' custody - under section 9 the maximum would be 10 years' custody. Miss O'Reilly this morning was unable to assist as to precisely what the judge was referring to when he said what he did. She accepts that it may just have been a slip of the tongue or shorthand for the comparative exercise which a sentencing judge has to carry out in circumstances such as these.

The judge's sentencing remarks are so brief that there is no clear explanation as to how he reached a notional sentence before trial of six-and-a-half years before giving around 10 per cent credit for the guilty plea. However, he did make reference to the fact that there were three separate victims and three separate offences. Whilst each offence occurred on a different occasion, it was not going to be appropriate to pass consecutive sentences without making a significant downward adjustment for totality, as the judge clearly recognised. However, the difficulty about this particular sentencing exercise was that there was no obvious candidate for a lead offence to reflect the overall criminality of the appellant's behaviour because the offending was of strikingly similar nature and C, although slightly older than the others, was particularly vulnerable by reason of a recent bereavement.

Although the age of the victims is catered for to an extent by the nature of the modern comparator offence, the judge was still entitled to have regard to the fact that these were all young boys, without double-counting. The historic offence is not specifically aimed at child victims. In terms of other aggravating features, the judge identified that the incidents took place over a period and that there was an element of trust involved. He also took account of the impact that the offending had on the three victims. As he said, their statements made clear the "painful, persistent and pervasive harm that these offences that they suffered at a young age have caused them". C's statement, which C read out in open court, was particularly moving.

In terms of mitigation the judge referred to the fact that the offences were committed as a young adult, that the appellant had not offended subsequently and that he had led a productive life, being married with grown-up children and grandchildren, with many positive character references from friends, including those who had known him at the time of the offending. However, it is not unusual for sex offenders whose offences only come to light many years later to have led apparently blameless lives, and indeed to have contributed positively to society in the long period between committing the offences and being found out. The guideline on section 7 offences makes it clear that, unlike the lack of previous convictions, previous good character and exemplary conduct should not normally be given any significant weight and will not normally justify a reduction in what would otherwise be the appropriate sentence.

While the appellant was enjoying a normal happy family life for over 30 years, his victims were living under the shadow of the abuse that they had suffered at his hands. As the judge said, during that time they had lived with the damage that he had done and the pain of an unresolved wrong. The evidence of two of the three victims indicated that despite the fact that the appellant has been brought to justice, their lives and wellbeing continue to be seriously impaired by the trauma of reliving their experiences.

Despite his late guilty pleas, the appellant was still denying any culpability for the offences to the probation officer who was the author of the pre-sentence report. The judge was therefore unable to give him credit for remorse.

Having considered all these factors, including the very positive evidence from the prison in the prison report, we conclude that even if the judge should have adjusted the starting point downwards, on the facts of this case it would not have been justifiable to reach a sentence of less than three years for a single offence taken in isolation. Here, there were three offences committed on different occasions against three separate victims, and that had to be reflected in the notional sentence after trial. Of course, there would need to be an adjustment in accordance with the totality guideline, but as that guideline makes plain there are different options for addressing that issue.

In principle it would have been open to the judge to pass consecutive sentences. Had the judge passed three consecutive sentences of 26 months (adjusting each of the hypothetical three-year sentences downwards by 10 months for totality) he would have reached the same overall tariff, and there could have been no complaint. Seen from that perspective, by whatever means it was arrived at, the six-and-a-half year notional sentence before credit for plea cannot be described as falling outside the reasonable range for offending of this nature and seriousness.

Accordingly, the sentence was not manifestly excessive. We therefore dismiss this appeal.