R v WFU

The provisions of the Sexual Offences (Amendment) Act 1992 apply to this offence. Under those provisions, where 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 s.3 of the Act. This judgment has been anonymised accordingly.

On 20 December 2024 in the Crown Court at Birmingham, before His Honour Judge Simon Ash KC and a jury, the appellant (then aged 39) was convicted of a number of sexual offences committed against his younger female cousin (C1) when she was aged between 10 and 12 years of age. Counts 1 and 2 (indecent assault) reflected times when he kissed her sexually; Counts 3 and 6 (indecency with a child) were occasions when he made her perform oral sex on him; Counts 4 and 7 (indecent assault) involved the appellant rubbing his penis between C1's naked breasts; Count 5 was an offence of rape; Counts 8 and 9 were both offences of sexual intercourse with a girl under 13; and Counts 6 to 9 were multiple incident counts.

The appellant was sentenced on the basis that Counts 1 to 5 were committed when he was aged 16 and C1 was 10; and Count 9 when the appellant was 17 and C1 was 11. In relation to Counts 6, 7 and 8, the last of those offences in each count were committed when the appellant was 18 and C1 was 12. The other offences included in Counts 6, 7 and 8 took place when the appellant was 16 or 17 and C1 was 10 or 11. In relation to Count 9 (a multiple incident count of sexual intercourse with a girl under 13, which occurred on at least two occasions) the offences were committed when the appellant was aged 17 and the complainant was aged 11.

The lead offence was taken as Count 8, a multiple incident count of sexual intercourse with a girl under 13 years of age, contrary to section 5 of the Sexual Offences Act 1956. The judge found that the last of the offences was committed when the appellant was aged 18 and the complainant aged 12. Whilst, as we have said, the other offences included in those counts were committed when the appellant was aged 16 or 17 and the complainant was aged 10 or 11.

In what was a complicated sentencing exercise, on Count 8 (taken as the lead offence) the judge imposed a special custodial sentence of 12 years for an offender of particular concern, pursuant to section 278 of the Sentencing Act 2020, comprised of a custodial term of 11 years and a further one year licence period, with concurrent sentences being passed on all other counts.

In this regard, in relation to Count 6 (indecency with a child) the judge passed a sentence of seven years' imprisonment concurrent. In fact, it appears that the judge ought to have imposed a special custodial sentence but absent there being any basis to reduce that sentence section 11(3) of the Criminal Appeal Act 1968 prevents the imposition of such a sentence by this Court.

In relation to Count 3 (indecency with a child), the judge imposed a sentence of four years' imprisonment. However, given the judge's finding that the appellant was aged 16 when he committed Count 3 (indecency with a child), the maximum sentence available at the time for a 16 year old was a detention and training order ("DTO") for a maximum period of 24 months (section 100-101 of the Powers of Criminal Courts (Sentencing) Act 2000). We will return to that in due course.

The appellant appeals against sentence by leave of the single judge.

Turning to the facts of the appellant's offending. In 2011 the appellant contacted C1 on Facebook. She asked him why he was contacting her and confronted him about the sexual abuse. When C1 asked the appellant why he had sex with her when she was 11 and 12, he replied "stupidity". C1 disclosed the abuse in parts to her grandmother and her mother over the years and in 2016 reported the offence to the police but did not feel able to proceed with a prosecution at that time.

The appellant was interviewed under caution in January 2020 and denied that any of the offences took place. He was, however, convicted on all counts.

The appellant had no previous convictions. There was both a pre-sentence report and a psychiatric report before the Court.

There were two victim personal statements before the Court, one dated 14 December 2024 and one undated. It is clear from the victim personal statements (as the judge found) that the complainant has suffered severe and lifelong psychological harm (as well as the physical symptoms thereof) as a result of the sexual abuse inflicted upon her by the appellant. The offences have been life-changing for her and her life will never be the same as a result. As she ends one of her victim impact statements, the appellant, "groomed, abused and raped me. He defiled my body, poisoned my mind, destroyed my childhood and robbed me of the future I have worked tirelessly toward for as long as I can remember. My life has been effectively shattered for the sake of his perverse sexual gratification, and his actions will haunt me for the rest of my life".

As already noted, the judge had the benefit of a pre-sentence report and a psychiatric report. In the former the appellant was identified as not showing any remorse for his offending and continuing to deny that any of the offending had taken place. He was assessed as presenting a high risk of serious harm to post-pubescent females. The nature of that risk was exploitation and grooming for the purpose of sexually abusing the child to meet his own sexual needs. It was noted that there was evidence that the appellant contacted the victim via social media when she was an adult and therefore she would be at risk of continued psychological harm. The recommendation was an unrealistic one, proposing the consideration of suspending any custodial sentence with a rehabilitation activity requirement, unpaid work and the like.

In the psychiatric report, the author (Dr McGanty) expressed the view that the appellant's level of maturity was lower than for his age (a matter that the judge addressed in his sentencing remarks). He also diagnosed an autistic spectrum disorder but did not consider that it reduced his culpability.

The grounds of appeal, which were drafted by trial counsel, Ms Geraldine Toal, are that the sentence was manifestly excessive in that the judge did not take fully into account (1) the relevant case law, the legal principles or the statutory framework when sentencing, and/or (2) the contents of the pre-sentence report and the relevant sentencing guidelines, and/or (3) the diagnosis of Autistic Developmental Disorder, and/or (4) the age and vulnerability of the appellant at the time of the offending, and/or (5) the true chronological age of the appellant at the time of the offending, and/or (6) the historical nature of the offending and the passage of time that had elapsed since.

In granting leave to appeal against sentence, the single judge stated, amongst other matters, as follows:-

Like the single judge before us, we consider that the central issue that arises out of the grounds of appeal is whether the sentence passed on count 8 (sexual intercourse with a girl under 13) of a special custodial sentence of 12 years, comprising of a custodial term of 11 years and a further one year licence period, in respect of the commission of such offence when the appellant was 18 and the complainant 12, to represent the totality of the offending across all counts (in relation to most of which the appellant was a youth), with concurrent sentences being passed on all other counts, is manifestly excessive. This was accepted by Mr Seller, who has stepped in recently for the hearing due to unavailability of Ms Toal, and we are very grateful to him for his realistic submissions before us.

Before addressing that central issue, we can deal with the other grounds in short order as we do not consider them to be of any merit.

We would observe at the outset that we consider the sentencing remarks of the judge to be a model of their kind in relation to what was, as we have already said, a difficult sentencing exercise in relation to historical sexual offending involving young people. The judge did take into account the relevant case law, the legal principles and the statutory framework when sentencing. In this regard he referred to, and correctly applied, R v Forbes [2016] EWCA Crim 1388, R v Ahmed [2023] EWCA Crim 281 and R v Clarke [2018] EWCA Crim 185, and the relevant historic and current offences. He also expressly referred to, and took into account, the relevant guidelines including the Sentencing Children and Young People Guideline, the Guideline on Mental Disorders, Development Disorders and Neurological Impairments, the Totality Guideline and the Imposition Guideline. He also referred to the pre-sentence report (albeit its recommended outcome was wholly unrealistic) and relied upon it in the context of his dangerousness assessment.

The judge had express regard to the diagnosis of Autistic Developmental Disorder whilst rightly concluding, for the reasons that he gave, that the appellant's culpability was not reduced thereby, which was consistent with the psychiatric report, but he took it into account by way of mitigation. He also proceeded on the appropriate basis that the appellant's likely level of maturity was approximately two years lower than his biological age. The judge had careful regard to the appellant's age at the time he committed the various offences, as well as his vulnerabilities as identified in the sentencing remarks.

We turn then to consider the central issue as to whether the sentence passed on Count 8 (sexual intercourse with a girl under 13) of a special custodial sentence of 12 years, comprising of a custodial term of 11 years and a further one year licence period to reflect the totality of the offending, was manifestly excessive.

This was undoubtedly Category 2B offending under the Sexual Offences Guideline. The starting point for an adult (which the appellant was at the time of being sentenced) for a single offence was 10 years' custody, with a range of eight to 13 years' custody. However the appellant was also being sentenced for multiple sexual offences against his young cousin over an extended period of time.

This included further serious offences of sexual intercourse with a girl under 13 (Counts 8 and 9 being multiple incident counts). These required an increase from the starting point. The further serious sexual offences against his young cousin, when he was himself a youth, involving Counts 3 and 6 (indecency with a child - her performing oral sex on him), Counts 4 and 7 (indecent assault - him rubbing his penis between her naked breasts) and Counts 1 and 2 (indecent assault - sexual kissing) all required a very substantial further increase from the starting point (for an adult, in reality, significantly out-with the top of the range).

The difficult aspect of the sentence was as to the appropriate downward reduction, having regard to the principle in R v Clarke (in relation to Count 8 itself) and the appellant's age, lack of maturity and vulnerabilities, applying the Children and Young Person Guideline, in relation to when he committed the numerous further serious sexual offending against his young cousin. Such serious further offending had to be properly reflected in the total sentence that was passed.

The sentence arrived at in terms of the custodial term for the entirety of the offending was barely above the starting point for a single offence such as Count 8 for an adult (and the appellant was an adult at the time), and was to reflect the totality of the serious sexual offending against his young cousin over an extended period of time, that had devastating and life-long consequences for her as reflected in the victim impact statements.

Even taking Count 8 in isolation as a single offence, and reducing from the starting point to the very bottom of the range to reflect the appellant's age (just 18) and lack of maturity, and the other mitigation relied upon (such as it was) a sentence in the region of eight years' custody would have been entirely appropriate for the entirety of the offending under Count 8, before a very significant increase to reflect the totality of the offending. In fact, the increase was modest, to barely above the starting point for a single offence.

Applying the Totality Guideline, as the judge did, when sentencing for more than one offence, the overriding principle of totality is that the overall sentence should reflect all of the offending behaviour with reference to overall harm and culpability, together with the aggravating and mitigating factors relating to the offences and those personal to the offender and be just and proportionate.

We consider that the judge did just that and the total sentence passed was not manifestly excessive and indeed was just and proportionate to the totality of the offending.

Whilst we accordingly dismiss the appeal against sentence, we quash the unlawful sentence that was passed on Count 3. We can see no purpose in substituting a concurrent Detention and Training Order on this count given the overall sentence passed and, exceptionally, therefore, substitute a sentence of no separate penalty on Count 3.