R v Lancelot Stuber

The provisions of the Sexual Offences (Amendment) Act 1992 apply to this case. 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 the offence. This prohibition applies unless waived or lifted in accordance with section 3 of the Act.

On 10 May 2024, following a trial in the Crown Court at Wood Green, the appellant was convicted of one count of rape of a child and eight other counts involving sexual offences on a child, contrary to the Sexual Offences Act 2003.

On 13 September 2024, the applicant was sentenced by the trial judge to a special custodial sentence of 21 years, pursuant to section 278 of the Sentencing Act 2020, comprising a custodial term of 20 years and an extended licence period of one year.

The appellant now appeals against sentence with the leave of the single judge.

The appeal arises from a series of sexual assaults carried out by the appellant on the complainant when she was a child. The offences took place between 2002 and 2010. The appellant was trusted by her family.

When she was 7 or 8 years old, the appellant began inappropriately touching the complainant’s bottom over her clothing. This later progressed to him touching the complainant’s genitalia over her clothing and rubbing his penis onto her bottom whilst clothed.

The first occasion on which this happened was when the complainant came into the front room of her home in the middle of the night where the appellant was on the sofa. He began to touch her between her legs and on her bottom, then lay on the sofa beside her and rubbed himself against her from behind. He then tried to climb on top of her and continued to rub himself on her. She could feel his penis on her, which felt uncomfortable. He continued to rub himself on her back, her bottom, and her thighs.

There were similar such incidents on more than one occasion between 2002 and 2010. The appellant would regularly touch the complainant on her legs, thighs, bottom and vaginal area over clothing when her family were not looking. The appellant told the complainant that it was just a game and that she should not tell anyone what was happening to her because she would not be believed and could get into trouble.

On one occasion the complainant was staying overnight at the appellant’s flat as he was babysitting. He gave her his room to sleep in. When she was preparing for bed he came in and touched her under her nightie, including touching her vagina. On that occasion (which was the subject of counts 9 and 10 on the indictment) he penetrated the complainant with his fingers. He then got on top of her and attempted, only partially successfully, to insert his penis into her vagina, but stopped when she said that it was painful. He continued to touch her and rub her with his hands and penis.

The last occasion on which the appellant touched the complainant was when she was in secondary school, aged 14 to 15 years. She was in her home revising for exams when he put his hands on her legs and tried to touch her vagina. The complainant moved her legs to obstruct the appellant and asked him to stop.

From 2010 onwards the complainant told a number of individuals about the offences. Eventually matters came to the attention of the police who conducted an investigation which culminated in the appellant being charged with the following offences: three counts of indecent assault, contrary to section 14(1) of the Sexual Offences Act 1956 (counts 1, 3 and 4); three counts of sexual assault of a child under 13, contrary to section 7(1) of the Sexual Offences Act 2003 (counts 2, 5 and 6); two counts of sexual activity with a child, contrary to section 9(1) of the 2003 Act (counts 7 and 8); one count of assault of a child under 13 by penetration, contrary to section 6(1) of the 2003 Act (count 9); and one count of rape of a child under 13, contrary to section 5(1) of the 2003 Act (count 10). The appellant was convicted on all counts, save for count 2, where no verdict was taken.

The judge considered the sentencing guideline for the offences. He noted that there was no guideline available for counts 1, 3 and 4, which pre-dated the repeal of the Sexual Offences Act 1956. He said that he would have regard to the equivalent current guideline, namely that for sexual assault of a girl under 13 years, contrary to section 7(1) of the 2003 Act. He concluded that under that guideline the offences fell into category 2 harm, because of the complainant’s age, and culpability A, due to grooming behaviour and planning. The judge noted that the offending was aggravated because of steps taken by the appellant to stop the complainant reporting the offence.

The judge considered that counts 7 and 8 were category 3A offences, because of the appellant’s grooming behaviour and abuse of trust.

The judge found that counts 9 and 10 were category 2A offences, given the age and vulnerability of the complainant, the abuse of trust, the grooming behaviour and the severe psychological harm caused.

The judge also referred to the appellant’s previous convictions. At the time of sentence he had 29 convictions for 62 offences from 1983 to 2017, predominantly for offences of dishonesty. The last conviction was for possession of a bladed article. The appellant had no previous convictions for sexual offences.

The judge referred to the pre-sentence report, in which it was noted that the appellant continued to deny the offending. The author concluded that he posed a high risk of serious harm towards children and a medium risk of serious harm to the public. The author assessed the appellant as dangerous.

The judge was not persuaded that a finding of dangerousness was established. He imposed a special custodial sentence on counts 9 and 10 on the basis that the appellant was an offender of particular concern.

Having considered the complainant’s personal statement, which spoke movingly of the severe psychological harm the offending had caused her, the appellant’s mitigation, and referring to the principle of totality, the judge decided to treat count 10 as the lead offence and aggravated the sentence for all the offences on that count, imposing concurrent sentences for the other eight offences. As we have said, the judge imposed a special custodial sentence of 21 years, comprising a custodial term of 20 years and a one year’s extended licence.

Miss McCarroll appears on behalf of the appellant and we are grateful to her for her submissions. She submits that the sentence the judge imposed was manifestly excessive. She accepts that the judge was right to approach the sentencing exercise by treating count 10 (the most serious offence) as the lead offence. She also accepts that that offence falls within category 2A of the applicable sentencing guideline, which has a starting point for a single offence of 13 years’ imprisonment, and a range of 11 to 17 years. She submitted that that categorisation itself took account of the complainant’s age, the severe psychological harm the offending had caused, the abuse of trust and grooming behaviour, and the fact that the offending took place in the complainant’s home.

In relation to other counts, Miss McCarroll submitted that the next most serious offence (count 9) had taken place on the same occasion as count 10. The other counts had involved sexual touching of the complainant, including in some incidents of her vagina (although always over clothing) and the rubbing of the appellant’s penis on the complainant (again, over clothing). She said that, whilst serious, these were inherently less serious than counts 9 and 10 She accepted that these offences required an upward adjustment from the sentence which counts 9 and 10 would have merited in their own right, but submitted that the totality of the offending did not justify an increase to a total sentence of 20 years’ imprisonment.

Miss McCarroll also referred to the decision of this court in Attorney General’s Reference (R v RGX) [2023] EWCA Crim 1679. That was an application by His Majesty’s Attorney General, under section 36 of the Criminal Justice Act 1988, for leave to refer to a sentence to this court on the ground that it was unduly lenient. The offender had been sentenced for offences of assault by penetration, three counts of sexual assault, two counts of oral rape of a child, and two counts of sexual activity with a child. The judge had imposed an extended sentence comprising a 15 year custodial term and a one year extended licence period on one of the rape counts as a means of reflecting the totality of all the offending. The Solicitor General had submitted that a two year uplift from the 13 year starting point insufficiently reflected the seriousness of the overall offending. The court accepted that submission and raised the sentence for the lead offence to a custodial term of 19 years and a one year extended licence period.

Miss McCarroll accepts that RGX does not disclose an applicable principle of law as such, but points to the fact that the offending in that case was of greater seriousness than in this case, but nonetheless the court had not imposed a custodial term of 20 years.

We would note, of course, that RGX is concerned with its own facts, and that each sentence must necessarily reflect the facts of the case before the court.

We agree with the judge’s approach to treat count 10 as the lead offence. We found it helpful to consider what the appropriate determinate sentence would have been for that offence on a standalone basis. Rightly, there has been no criticism of the judge’s categorisation of that offence as category 2A for guideline purposes. Factors meriting culpability A were, as the judge identified, grooming behaviour and abuse of trust. We accept that it is important not to double count those factors.

In terms of aggravating factors, there was the attempt to deter the complainant from reporting the offence.

By way of offence specific mitigation, as Miss McCarroll points out, there was the fact that the offence involved partial, rather than full, penetration, with the appellant stopping when the complainant said that it hurt. We put matters of personal mitigation aside for the moment.

On that basis, we are satisfied that a determinate sentence at or around the level of the starting point would have been justified for count 10, had it fallen to be sentenced together with the digital penetration, but without having regard to the other assaults.

But of course the offending did not stop there, and a further uplift is required to reflect the other offences. We accept Miss McCarroll’s submission that they are less serious than counts 9 and 10. But, nonetheless, they are aggravated by the fact that they occurred in the complainant’s home. It must be borne in mind that counts 1, 3, 4, 5 and 6 all had a starting point of four years’ custody for a single offence, with a range of three to seven years, and that there had been a significant number of offences between 2002 and 2008, when the complainant was aged 7 to 12.

Equally, however, we accept Miss McCarroll’s submissions that this was not a case in which there was repeated vaginal touching. There had initially been touching of other parts of the complainant’s body, which in due course progressed to vaginal touching, although on all occasions the touching took place over clothing.

The judge also made some allowance for general personal mitigation in the form of the appellant’s difficult upbringing and significant trauma suffered as a young child. Whilst we note that the appellant had no previous convictions for this type of offence, that can only be accorded very limited weight, given the pattern of offending over a lengthy period.

Taking all of those matters into account, we have been persuaded that the judge’s sentence does fall to be criticised for this reason. It was important when bringing the other offences into account to have regard to the principle of totality which necessarily involved a lower sentence being imposed than if there had been a series of separate offences with standalone sentences. Nonetheless, the uplift must properly reflect the seriousness of the other offences.

We have concluded that if the principle of totality had properly been taken into account, the appropriate sentence in this matter would have been a special custodial sentence of 19 years, comprising a term of imprisonment of 18 years and an extended licence period of one year. We are satisfied that in failing to give sufficient regard to the principle of totality at that point, the judge’s sentence as a result was manifestly excessive.

The other sentences imposed by the judge will not be amended and will all run concurrently with the sentence which we now impose. The Sexual Harm Prevention Order imposed by the judge will remain in place.