R v WAG

The provisions of the Sexual Offences (Amendment) Act 1992 apply in this case. That means that no matter may be published in any way during her lifetime which identifies the victim in this case as the victim of the sexual offences we are about to describe. That order will remain in force for her protection so that she will be anonymous for the rest of her life unless it is varied or withdrawn in the meantime by the Court. There is no reason at all to suppose that will ever happen and any person contemplating publishing any material about this case should have regard to that order, the consequences of breach being grave. As a consequence of that anonymity protection, it is also necessary, under section 11 of the Contempt of Court Act 1981, for the Court to direct that the offender in this case shall be anonymised. That is because it will be necessary to include in this judgment some information about his family circumstances which will necessarily give some clue to the identity of the victim. The reason why that is so will become obvious shortly. Therefore he will be referred to in this judgment by some randomly chosen initials which we shall obtain shortly. His name will not be incorporated in the text at all. He will be referred to simply as "the offender". To be clear, the purpose of that anonymisation in his case is not for his benefit but for the benefit of the victim. We understand that there has already been some publicity attached to his name as a result of the course of the proceedings in the Crown Court. That is as may be, it is not a reason to expose the victim to any further risk of exposure of her identity by reason of the necessary contents of this judgment.

This is an application by His Majesty's Solicitor General for leave to refer sentences under section 36 of the Criminal Justice Act 1988 to this Court for review. She contends that the sentences were unduly lenient, and that they should be increased as a result of that review. We give leave.

The offender is now 39 years old. On 18 December 2024, he was sentenced to 15 years' imprisonment at the Crown Court. That total sentence followed his conviction after a trial by a jury on nine counts which appeared on the indictment on which he was tried. We will now set out the counts and the sentences which the judge imposed. Count 1 was an offence which was a count which alleged a single offence of sexual activity with a child family member, contrary to section 25 of the Sexual Offences Act 2003. Count 2 alleged a further single offence under the same provision. The judge, for reasons which we shall explain shortly, imposed no separate penalty on either of those counts. That is a course which he took when dealing with all of the other counts on the indictment except count 7. Count 3 was a further allegation of an offence under section 25 of the Sexual Offences Act 2003, but this was a multiple incident count which alleged conduct on a minimum of five occasions. Count 4 was an allegation of a single offence of assault by penetration contrary to section 2 of the Sexual Offences Act 2003. All of the counts on this indictment were said to relate to offences which were said to have occurred after the victim's 13th birthday. Count 5 was a further allegation of assault by penetration, contrary to section 2 of the 2003 Act. This was a multiple incident count which alleged a minimum of five occasions on which offences were committed. Again, as we have said, the judge imposed no separate penalty on counts 4 and 5. Count 6 was an offence of inciting family member to engage in sexual activity contrary to section 26 of the Sexual Offences Act 2003. Once again, no separate penalty was imposed. We shall return to count 7 in a moment. Counts 8 and 9 alleged individual single acts of attempted rape contrary to section 1(1) of the Criminal Appeals Act 1981, and once again no separate penalty was imposed in relation to those two offences.

The reason why the judge imposed no separate penalty for those eight serious offences was that he approached count 7 as the lead offence on which he imposed a term which was intended to encompass the totality of all of the criminality of which this offender had been convicted. Count 7, the lead offence, was an allegation of rape, contrary to section 1(1) of the Sexual Offences Act 2003, and the sentence was 15 years' imprisonment. That meant that the total term following all of those nine convictions was 15 years' imprisonment. Further orders were made, as is conventional and required in consequence of convictions of that kind. Nothing now turns on those. The only further thing that it is necessary to mention at that stage is that the 15-year-term imposed on count 7 was a determinate sentence because the judge had decided not to proceed by means of an extended determinate sentence in consequence of a finding of dangerousness. The judge considered the question and found that the offender is not dangerous.

The Solicitor General makes two submissions through Mr Hookway who appears on her behalf this morning. She submits first, that the lead sentence on count 7 required further upward adjustment to properly reflect the full range and extent of the offending against this child, and secondly, that the offender ought to have been found dangerous and that an extended sentence ought therefore to have been imposed.

In summary, the victim was the offender's stepdaughter. In about January 2020, she was 13 years old and she was sexually abused by him. He continued to do this on multiple occasions over the course of the next 2½ years. She finally was able to disclose what had happened to her mother on 24 July 2022. The sexual offending took a number of forms. The counts alleging sexual activity with a child (counts 1 to 3) involved the offender causing the victim to masturbate him to ejaculation. That occurred not less than seven times. The offences of penetration involved digital penetration of her vagina and this happened not less than six times.

The offence of inciting sexual activity occurred when, on a single occasion, he tried to persuade her to perform oral sex on him. She refused but that encounter continued with other sexual activity also to ejaculation. Finally, the allegation of rape was a single offence of vaginal rape, the two allegations of attempted rape related to two occasions when he attempted to rape her vaginally.

It is necessary to set out some further detail about the facts. The victim's mother met the offender at some point before 2010. They began a relationship and cohabited from 2016. At that point the victim was aged between 9 and 10 years old and her brother was aged between 7 and 8 years old. The victim's mother and the offender were married in 2018. He had two children from a previous relationship. All four of the children lived with him and the victim's mother. Ms Gates, who has appeared for the offender before us this morning and made focused and helpful submissions on his behalf, submits that the significance of those facts is that this is not a case where the offender contrived a relationship with the parent of a child in order to have access to that child for sexual purposes.

The sexual offending began, as we have said, in about January 2020. At that point the victim's mother took a job in a care home which involved her working night-shifts, leaving the offender with the children in the family home as the only adult present. Her need to be absent through that work intensified during the pandemic which followed. For a substantial period of time the offender became the chief carer for all of the children while she was at work. She was unaware of the sexual offending until it was disclosed to her as we have explained. However, once that disclosure was made, she looked back over the events which had occurred since January 2020 and attached rather greater significance to some odd occasions, when the offender was seen by her to be behaving in an overly familiar way towards the victim. She did question that on occasions but was rebuked by him and made to feel absurd. That deflection of her interest is a factor which is of some significance both in relation to the appropriate sentence and also to the question of dangerousness.

During the period over which the offending extended the mother detected also that the offender had become jealous and controlling in relation to the victim's movements and in relation to who she was allowed to be with by way of friends and how she could communicate with them. Shortly before she disclosed what had been happening, she said to her mother that she wanted to leave home and that she hated the offender. She did not explain why. The mother said at that point that she would end the relationship with the offender but that did not happen. A few weeks later the offender was away in Scotland. When he returned he found out that the victim had gone unsupervised to the house of a boyfriend. He was very angry about this and demanded that her mother should take the victim's phone from her. That is what caused the mother to talk to the victim on 24 July 2022. She said to her mother that she did not want to be at home but would not explain why. On further questioning by her mother she said: "Mum, you'll hate me. I don't want you to think I've tried taking your husband off you." After reassurance, that is when the victim was finally able to disclose the sexual abuse to which she had been subject for a period of 2½ years. The mother confronted the offender. He denied the allegations. He continued to do that of course throughout the course of the proceedings which followed.

In general, the account which we have given of the indictment and the offences and the number of offences will suffice as an explanation of precisely what this offender did to this child.

It is necessary to say only a little more about that. One fact is of particular significance. After the first incident in January 2020, when sexual activity occurred between them the offender used the fact that he had become aware that the victim had installed Snapchat on her mobile phone. Her mother had banned her from doing that and would be extremely angry with her if she found out that that had happened. The offender exploited his knowledge of that piece of information during the period which followed in order to coerce and bully her into complying with his wishes. That use of blackmail and that means of preventing her from reporting what had happened is an aggravating factor which runs throughout the offending. Another aggravating factor which runs throughout the offending is the fact this happened in her home and that it was perpetrated by a man whom she was entitled to trust - her mother's husband who was for a lengthy period of time acting as sole carer - while the mother was away at work attempting to provide for her family.

There is one further strand of the evidence which we should record and that is evidence from messages which were recovered which passed between the offender and the victim. These messages proved his possessive attitude towards this child, and his obsessive and entirely unhealthy interest in her relationships with young people of her own age. Finally, we should record that when the police investigated his phone browser, they identified that he had visited websites which he had located by searches for pornography. His choice of those websites appeared to show a sexual interest in relationships between stepfathers and stepdaughters and in young teenagers.

The offender: first of all, we should record that he has no previous convictions cautions or reprimands. There was a pre-sentence report about him before the judge, which we have read. There was also a body of material comprising character references which showed that he had, over a period of many years, contributed positively to the management of a football team. That football team particularly sought to assist vulnerable children and adults to play football. It caters for children as young as 5 years old.

Ms Gates realistically observes that a court confronted with a person who has behaved in this way towards a child is likely to be very sceptical about this offender's motives in being involved in charitable work which gives access to children in this way. While scepticism is of course justified, it is right to say that his involvement in that activity occurred over a period of a number of years and so far as we are aware no complaint of any kind about his behaviour was made by anyone. He is therefore, in our judgment, entitled to rely, to some extent, on that charitable work, supporting vulnerable and disabled people as some mitigation on the facts of this case.

More troubling from his point of view is the pre-sentence report. The author of the pre-sentence report attempted to discuss his offending with the offender. That discussion was obstructed by his continued denial. This meant not only that he was not manifesting any remorse or regret for what he had done to this child but also that he had no insight of the kind which might encourage optimism about his future. The author of the report set out in the detail the history of his life up to the point when he fell to be sentenced and his family relationships. However, it was observed that given that the offender sees no reason to engage in any interventions designed to explore his distorted sexual attitudes, the prospect of rehabilitation is negligible. The report concluded that the offender poses a high risk of serious harm to children particularly post-pubescent females. The report therefore concluded that the dangerousness criteria were met and that the court might conclude that an extended period of oversight from criminal justice agencies is necessary to guard against the defendant creating further victims.

There was a victim personal statement from the victim and a further victim personal statement from her mother. The impact of the abuse has been catastrophic both for her personal wellbeing and for her education. She has become withdrawn and has failed to attend school as frequently as she should have. She has difficulty with relationships and suffers regular panic attacks.

It is necessary only to record the relevant maximum sentences and to identify the appropriate guidelines to which the court was required to follow. The maximum sentence for sexual activity for a child family member and for inciting a child family member to engage in sexual activity is 14 years' imprisonment. The maximum sentence for assault by penetration and for rape and for attempted rape is in each case life imprisonment. All of the offences are specified offences for the purposes of an extended sentence pursuant to section 279 of the Sentencing Act 2020.

The offences each have an offence specific guideline. There is also an Overarching Guideline dealing with the subject of totality. The offence specific guidelines do provide sentencing ranges and within each range a starting point for different categories of the offences. The guideline in relation to totality does not provide the same level of detailed guidance when assessing the appropriate total sentence for a large number of different offences committed against a single victim over a long period of time. In that exercise the sentencing judge is left without detailed and specific assistance from the guidelines.

Given the approach taken by the judge to this sentencing exercise, we start with the position in relation to count 7. The judge categorised the offence of rape and, for that matter, each of the two offences of attempted rape as an offence involving culpability A and category 2 harm. There is no doubt that was correct. The culpability A factor which was involved here was abuse of trust. In relation to category 2, the relevant harm factors which were present were severe psychological or physical harm which was present to a degree, and the victim is particularly vulnerable due to personal circumstances. In this case the victim was 13 years old when all this started. Had she been a little younger, then the offence would have been a different offence of rape against a child under the age of 13 and a different guideline would have applied. This victim was as young as a victim can be while still being dealt with by reference to the rape guideline which applies to offences against adults. There was planning and grooming which was all tied up in some ways with the breach of trust. The breach of trust was particularly grave. The judge fully understood that and described it in this way:

The judge therefore identified that count 7 involved a starting point for guideline purposes of 10 years' imprisonment with a range of 9 to 13 years. The same categorisation extended to counts 8 and 9, the two counts of attempted rape. We shall return to where that takes us at the end of this judgment.

The judge also categorised all of the other counts, counts 1, 2 and 3, being counts of sexual activity with a child member were categorised as category A2 offences for reasons which are the same as those which have been applied to the offences which we have described so far. Categorisation in category 2A would generate a starting point for a single offence of 4 years' imprisonment with a range of 2 to 6 years. Count 6, the incitement offence was categorised as a category 2A offence, which generates a starting point also of 4 years' imprisonment, with a range of 2 to 6 years. Counts 4 and 5, assault by penetration, also attracted a categorisation at the level 2A with a starting point of 8 years' imprisonment for a single offence and a range of 5 to 13 years. There were aggravating factors which we have identified as we have been going through the facts, in particular ejaculation, location of the offending and steps taken to silence the victim by blackmail threats. In the end, as we have said, the judge decided that he would deal with the other offending on counts 1 to 6 and 8 and 9, by increasing the sentence on count 7 to a higher category. The starting point in category A1 for rape is 15 years, and that is how the judge arrived at the final sentence in this case.

So far as dangerousness is concerned, the judge declined to make a finding of dangerousness. He said this:

The Solicitor General makes the two headline submissions in support of this application which we have identified at the start of this judgment. In short, it is submitted that the total term of 15 years' imprisonment fails to reflect the totality of this very serious course of conduct which persisted over such a long time. The Solicitor General submits that the mitigation was in truth limited. Secondly, the Solicitor General submits that the judge erred in declining to make a finding of dangerousness for the reasons which we have set out above. In response, Ms Gates makes the submission, which we have referred to in passing above, that the relationship here between the offender and the child's mother was not engineered to allow access to the child. Ms Gates places emphasis on the charitable work done by this offender over a period of many years and relies on that in mitigation. On the subject of dangerousness, she submits the judge was entitled to form his own view and that his explanation for his conclusion reveals no error.

First, we think it necessary to make some observations about the judge's approach in this case to sentencing multiple offending. It is of course perfectly conventional to identify the most serious offence on the indictment as what is often described as "the lead offence". If proceeding in this way the sentencing judge imposes a sentence on that single offence which is increased to reflect all of the other offending so that the total sentence is proportionate to it. That is not only an acceptable practice, it is a standard way of dealing with indictments of this kind. We of course therefore make no criticism whatsoever of that. However, the judge's decision to impose no separate penalty in relation to the other eight counts on the indictment was, we find, flawed. First of all, it is, appropriate that serious criminal offending, when proved, should have a sentence attached to it. This may in cases such as the present be quite symbolic but the symbol is not unimportant. In cases of multiple victims, this becomes much more important and perhaps less symbolic. Secondly, for technical reasons the course taken by the judge is, with respect to him, poor practice. In this case, we understand that there is an outstanding application for leave to appeal against conviction. Should that succeed and should the conviction on count 7 be quashed, then the offender will never have been sentenced for the offences of which he has been convicted, if any are not quashed. If, on the other hand, they are all quashed and sent back for retrial and for some reason the offender is acquitted on count 7, a significant sentencing problem may present itself to the sentencing judge sentencing at the conclusion of a retrial. The appropriate way of avoiding all of that is for the sentencing judge to go to the additional trouble of not only categorising these other offences, as this judge did, but also imposing a concurrent term designed to reflect the individual count to which it relates, the weighting to reflect multiple offending being dealt with under the sentence for the lead offence.

We therefore consider that we must give leave in this case in order to quash the decisions of the judge to impose no separate penalty in relation to all counts on the indictment except count 7 and impose sentences in relation to those counts.

The principal point of substance is as to the length of the sentence in relation to count 7. Notwithstanding the fact that we will conduct the resentencing exercise which we have just described, count 7 will remain the lead offence and the sentence on count 7 will be intended to reflect the totality of the offending.

We have some sympathy for the judge and indeed for all judges who find themselves sentencing large numbers of sexual offences on a single indictment or on a single occasion. The guidelines are of great assistance in fixing a sentence for an individual offence but are much less helpful when deciding how far a sentence needs to be increased to reflect the fact that offending took place on multiple occasions over a significant period. That is an assessment which the sentencing judge must make. With respect to him, we do not agree that an appropriate way of filling what might be a gap in the available guidance is simply to increase the sentence on the lead offence to a higher category than it would otherwise warrant, which was the approach taken by the judge in this case. That may result in a proportionate sentence, but there is no logical reason why this is necessarily so.

The single piece of guidance in the relevant guideline for rape offences, which specifically addresses the consequence of multiple offending is this rubric:

That single piece of guidance is in no way prescriptive of the outcome of any individual case. Sentences may be shorter than 20 years or far longer than 20 years. It all depends on the facts. However, it is perhaps a mark around which a judge can base his or her assessment of the facts with which he or she is dealing.

In this case, in our judgment, the totality of the offending did not amount to "a campaign of rape" but it did amount to something quite close to that. This, the victim's life for 2½ years of her adolescence, was entirely destroyed. The consequences with which she is being left to struggle may be lifelong. She may never get over the dreadful betrayal which she suffered. We, of course, in this Court, profoundly hope that things will go better than we fear that they might. Nevertheless sentencing has to reflect the very grave harm which offending of this kind can cause, has caused and will continue to cause in this case.

We consider that, in all the circumstances of this case the judge, by adopting the approach that he did, found himself imposing a total sentence which was indeed unduly lenient. We consider that in relation to count 7, being the count of rape which was the lead offence, a total sentence of 18 years would have been appropriate and is appropriate for the totality of the offending. We shall therefore quash all the sentences imposed by the judge on this indictment and replace them with sentences of our own. They will all be concurrent. In relation to count 1, the sentence is 5 years; in relation to count 2, the sentence is 5 years. In relation to count 3, the sentence is 7 years. In relation to count 4 the sentence is 9 years. In relation to the multiple count (count 5) alleging penetrative assault, the sentence is 11 years. In relation to count 6 the sentence is 5 years. In relation to counts 8 and 9, the two counts of attempted rape, the sentences are 9 years. The total term therefore is, as we have said, 18 years' imprisonment.

In relation to the second complaint made by the Solicitor General we consider that Ms Gates's submissions are well founded. It may well be that in many cases where offending of this kind comes before the court, particularly where there is a pre-sentence report in the terms which we have set out above, the sentencing judge will make a finding of dangerousness. However, it cannot be said that the reasoning of the judge in declining to make such a finding in this case is flawed so that he was in error. In our judgment, his conclusion on that subject was appropriately reasoned and properly open to him. For that reason, the sentence of 18 years' imprisonment on count 7 will be a determinate sentence and not an extended sentence. What that means, as we think the offender will well know, is that he will serve two-thirds of that term before he is entitled to be released.