R v YHW

LORD JUSTICE DOVE: We have concluded that in this case it is appropriate to make an anonymity order bearing in mind the familial relationship between the applicant and the victim of these offences and the risk that that might lead to jigsaw discovery of the victim.

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

On 25 April 2025 the applicant was convicted of counts 1 to 5 and 7 to 13 of an indictment at the Crown Court at Luton. Subsequently, on 24 June 2025 the applicant was sentenced as follows. On count 1, an offence of causing a child to watch a sexual act, contrary to section 12(1) and 13(1) of the Sexual Offences Act 2003, he was sentenced to three years' imprisonment. On count 2, an offence of rape of a child under 13, contrary to section 5(1) of the 2003 Act, the applicant was sentenced to eight years' imprisonment. On count 3, a count of sexual assault of a child under 13, contrary to section 7(1) of the 2003 Act, the applicant was sentenced to four years' imprisonment. On count 4, an offence of sexual assault of a child under 13, contrary to section 7 of the 2003 Act, the applicant was sentenced to four years' imprisonment. On count 5, an offence of sexual assault of a child under 13, contrary to section 7 of the 2003 Act, the applicant was sentenced to four years' imprisonment. On count 7, an offence of rape, contrary to section 1 of the 2003 Act, the applicant was sentenced to a special custodial sentence of 22 years. On count 8, an offence of rape, contrary to section 1(1) of the 2003 Act, the applicant was sentenced to 10 years' imprisonment. On count 9, an offence of sexual assault contrary to section 3 of the 2003 Act, the applicant was sentenced to two years' imprisonment. On count 10, which was an offence of sexual assault, contrary to section 3 of the 2003 Act, the applicant was sentenced to two years' imprisonment. On count 11, an offence of sexual assault, contrary to section 3 of the Sexual Offences Act 2003, the applicant was sentenced to two years' imprisonment. On count 12, an offence of rape, contrary to section 1(1) of the 2003 Act the applicant was sentenced to 10 years' imprisonment. On count 14, an offence of sexual activity with a family member, contrary to section 25(1) and (6) of the 2003 Act, the applicant was sentenced to five years six months' imprisonment.

The judge structured the sentence by taking count 7 as the lead offence and reflecting the totality of the applicant's offending in the sentence which was passed on that count. Thus all of the other sentences which have just been alluded to were all made concurrent to the sentence passed on count 7.

The applicant was convicted after trial of counts 1 to 5 and 7 to 13 on the indictment. Count 14 was added to the indictment immediately prior to the start of the trial to reflect the applicant's admissions as to his sexual conduct and he immediately pleaded guilty to that count. However, in light of the jury's verdicts on the other counts on the indictment, it was accepted that he came to be sentenced on the basis of the prosecution's case on a full factual basis.

The facts relied upon by the prosecution were as follows. The counts on the indictment related to the applicant's persistent sexual abuse of his younger brother, the victim, over a period of around 10 years. The applicant is 10 years older than his younger brother and the sexual activity between them began when the younger brother was only four years old.

A brief description of the conduct involved in each of the counts on the indictment is as follows. Counts 1 to 5 were committed when the applicant was under 18. Count 1 on the indictment related to a period between 2013 and 2016 when the applicant caused the victim to view a moving image of a person engaging in sexual activity.

Count 2 reflected an occasion between 2014 and 2017 when the applicant intentionally penetrated the victim's anus when the victim was under 13. Between 15 March 2015 and 19 January 2017, on more than one occasion, the applicant intentional sexually touched the victim, who was at that time a child under the age of 13 (he was in fact six to seven years old) by rubbing his erect penis between the victim's buttocks. This was charged as count 3 on the indictment.

Count 4 was a charge that between 20 January 2017 and 14 March 2022 the applicant intentional sexually touched the victim, who was a child under the age of 13 at the time.

Count 5 was the allegation that between 15 March 2021 and 14 March 2022 the applicant sexually assaulted the victim, who was a child under the age of 13 (he was at that time 12 years old) by rubbing his erect penis between the victim's buttocks whilst masturbating, one of these occasions occurring in their parents' bedroom.

The following counts were committed when the applicant was an adult. Under count 7 it was alleged that between 15 March 2022 and 1 August 2024 on more than 10 occasions the applicant intentionally penetrated with his penis the anus of the complainant who did not consent. This was an allegation of rape which, as has already been noted, was treated by the judge as the lead offence and the most serious of those to be found on the indictment.

Count 8 was another allegation of rape in that between 15 March 2022 and 1 August 2024 the applicant, on more than one occasion, intentionally penetrated the mouth of the victim with his penis who did not consent to this conduct.

Count 9 related to an allegation that between 15 March 2022 and 1 August 2024, on more than one occasion, the applicant sexually assaulted the victim by rubbing his erect penis between the victim's buttocks.

Count 10 related to a charge that between 15 February 2024 and 15 April 2024 the applicant sexually assaulted the victim by performing oral sex on the victim during Ramadan near the victim's birthday.

Count 11 was the allegation that between 1 August 2024 and 5 November 2024 the applicant had, on more than one occasion, sexually assaulted the victim by rubbing his erect penis between the victim's buttocks.

Count 12 was a further allegation of rape and was that between 1 August 2024 and 5 November 2024, on more than one occasion, the applicant intentionally penetrated the anus of the complainant with his penis who did not consent to him doing so.

Count 13 was again an allegation of rape. It was an allegation that on 30 October 2024 the applicant had intentionally penetrated the anus of the victim with his penis.

Finally, count 14 was the allegation that between 1 April 2023 and 4 November 2024, and on multiple occasions, the applicant had intentionally penetrated with his penis the anus of the complainant who was his brother and who he knew was his brother when he did not reasonably believe that the complainant was aged 18 or over at that time.

The essence of the evidence of the victim was that the abuse had started when he was about four or five and commenced with the applicant touching him and then progressed to him being raped by the applicant. The applicant had also made him watch pornography on the applicant's phone when he was four or five. They shared a bedroom and whilst the victim was playing games in that room the applicant pulled the victim and put him face down on the floor and removed his trousers, putting his penis in the victim's anal region and thrusting his penis between the victim's buttocks. Further incidents occurred when the victim was between five and seven when he was taken from the kitchen to the garden shed and abused. The victim thought that the applicant had on that occasion ejaculated.

When the victim was around 12 the applicant had rubbed his penis and ejaculated on the victim's belly and had also masturbated the victim. When he was 13 the victim had been penetrated when he was on the sofa watching TV and their sister and her child were upstairs.

The most recent occasion had been in their bedroom and their sister and brother had been downstairs when the applicant had held up the victim's legs and removed his trousers and underwear and penetrated his anus.

The applicant's offending came to light in August 2024 when one of the applicant's siblings reported to their sister that they had suspicions that there was sexual activity taking place between the two brothers. Following being confronted by the family, the victim admitted to his mother that sexual activity had been taking place. The family decided that they would not report what had happened to the authorities and forbade the applicant from persisting in the sexual abuse of his brother. Notwithstanding this, and the family's failure to act, the sexual abuse persisted and in November 2024 the victim disclosed the sexual abuse to his teachers. The police were called and investigated the allegations, leading to the applicant's prosecution.

The applicant initially denied that any sexual activity had taken place and then produced a defence statement in which he accepted that he had had full penetrative anal sex with the victim on about seven occasions with his consent. This gave rise to the addition of count 14 to the indictment.

The applicant was a man of good character and in his support a number of personal references were provided speaking to his positive qualities. There was also a pre-sentence report which analysed the applicant's offending and his personal circumstances and came to the conclusion that the applicant presented a medium risk of causing harm to the victim with whom he was likely to have contact in the future. Various measures directed to managing the applicant's risk were proposed but none led the author of the report to the conclusion that there was any alternative to the imprisonment of the applicant who by the time he came to be sentenced was 26.

Whether the applicant fell within the definition of a dangerous offender on the basis that he posed a significant risk of causing serious harm was a matter which was left by the author to the court.

As noted above, the judge chose to structure the sentence around the sentence on count 7. Whilst it had been agreed by the prosecution and defence that count 2 should be the lead offence, on the basis that it was the most serious of the offences of which the applicant had been convicted, he was at the time of that offence only 15. By contrast, he was an adult at the time of the offence in count 7.

A number of aggravating features were noted by the judge: the disparity of the ages of the applicant and the victim; the fact that the offences were committed at a time when there were family members present in the family home; the offences amounted to a breach of trust; and some of the offences involved ejaculation. A particular feature of concern to the judge was the effect that the offending had had upon the victim. The victim had sustained a very significant psychological injury as a result of the applicant's abuse of him. He experienced suicidal ideation and panic attacks and was traumatised by the pain which he had experienced as a result of his treatment at the hands of his brother. He remained anxious and scared around adult males, including his relatives. The judge observed:

The judge's strategy to arrive at an appropriate sentence overall for the applicant's offending was, as set out above, to take count 7 as the lead offence and reflect all of the offending within the sentence imposed on that count. For count 1 the judge simply stuck to the starting point for that offence of three years and made it concurrent to count 7. On count 2 in the light of the vulnerability of the victim and the severe psychological harm that had been caused, the judge concluded that this was a category 1A offence, with a starting point of 16 years and a range of 13 years to 19 years. The judge took the starting point and halved it to reflect the youth of the applicant at the time when the offence was committed, leading to the imposition of a sentence of eight years.

On counts 3, 4 and 5 the judge again concluded that these were category 1A offences and that the starting point reduced by half was, given the age of the applicant at the time, the correct approach. This led to the imposition of sentences of four years.

The judge then moved to consider the offending which had occurred when the applicant was over 18. In respect of counts 8, 12 and 13 (all counts of rape) the judge concluded that these offences fell into category 2A with a starting point of 10 years and a range of nine years to 13 years. On the basis of the approach that the judge was taking in terms of concurrent sentencing and that she was incorporating all of this offending in the sentence on count 7, she imposed a sentence of 10 years on each of these counts. Counts 9, 10 and 11 (allegations of sexual assault) were again categorised as category 2A by the judge with a starting point of two years. Taking her consistent approach, the judge imposed a sentence of two years on each.

In relation to count 14, this was an offence which the judge considered fell within category 1A with a starting point of six years. The judge again took that starting point but accorded the applicant a 10 per cent discount for his plea and arrived at a further concurrent sentence of five years six months.

Finally, the judge came to the count which was the lead offence for the purposes of structuring the sentence, namely count 7. This was a count of rape which reflected multiple occasions on which the applicant raped the victim over a period of about four years. The offence was categorised as category 1A for which a single offence had a starting point of 15 years and a range of 13 years to 19 years.

To reflect the totality of the applicant's offending, the judge concluded that the appropriate aggregate sentence would be one of 21 years. The judge then concluded that as a result of her concerns about the morale boundaries which had been provided by the applicant's parents, and the length of the sentence which was to be imposed, she did not consider that the applicant should be dealt with as a dangerous offender. She did however find that he was an offender of particular concern, pursuant to section 278A of the Sentencing Act 2020 and therefore imposed a further licence period of one year, to make a sentence of 22 years in all.

This was, as is now accepted on all sides, unfortunately an error. In fact the offence reflected by count 7 (rape of a child over the age of 13) is not listed in schedule 13 of the 2020 Act and therefore it was not lawful for the judge to impose the additional licence period of one year on the basis that the offence concerned did not fall within the scope of section 278(1). Whilst the offence under count 2 was listed in schedule 13 of the 2020 Act, as the applicant was under 18 when he committed that offence, section 278(2) precluded the imposition of a sentence for an offender of particular concern for that offence. This will need to be corrected as part of the outcome of this appeal.

The grounds of this application beyond this point are that the judge erred in taking count 7, rather than count 2 as agreed, as the starting point for sentencing the applicant. By taking this latter offence committed when the applicant was an adult the judge artificially inflated the overall sentence for the offending and failed to properly reflect the age and immaturity of the applicant at the commencement of the offending. Furthermore, the starting point for the totality of the offending was simply too high and whilst there had clearly been psychological harm to the victim, there had been no violence involved and the victim had not required psychiatric treatment.

We have carefully reflected upon these submissions but we are unable to overlook the fact that the sentence which was to be imposed in this case had to reflect the lengthy and persistent campaign of abuse to which the victim was subjected in this case. We are of the opinion that the judge was entirely right to take count 7 as the starting point for her structuring of the sentence. This was an offence which was committed when the applicant was an adult and correctly formed the basis of assessing the overall criminality in this case. Whilst the applicant was 15 when the abuse commenced, it continued for a significant period of time when the applicant was an adult. It can be seen from the analysis of the facts set out above that a significant number of serious offences, including a campaign of rape represented by count 7, were committed when the applicant was an adult.

The offences involved the infliction of very significant psychological harm to the victim in this case, effectively terrorising him for 10 years and entirely blighting his childhood. The breach of trust which the offences involved was grotesque. The relevant sentencing guidelines make specific reference to sentences in excess of 20 years' imprisonment where there has been a campaign of offending.

None of the individual sentences arrived at for the very many offences in this case can in our judgment be sensibly criticised. They all fell well within the lengths of sentences which are prescribed by the guidelines for each of these counts. In particular, the judge took care to reflect the youth of the applicant in the sentences on those counts which occurred prior to him turning 18, in particular counts 2 to 5, and in doing so she applied the relevant guidelines for the sentencing of young people faithfully.

We acknowledge that there was some personal mitigation available to the applicant in the form of his good character and the testimonials to his positive qualities, but given the gravity of the offending these were unlikely to attract significant weight in the assessment of the appropriate sentence in this case.

Considering the case overall, the applicant's offending gave rise to a lengthy catalogue of serious sexual offending against a close family member and in our view it was just and inevitable that a very lengthy custodial sentence would be imposed. The judge reflected totality in taking the approach that she did, and her sentence cannot in our view be sensibly considered to be either manifestly excessive or wrong in principle.

A further issue arises as a result of the conclusion which we have reached in relation to the sentence passed on the basis that the offender was an offender of particular concern, namely the question of whether, as suggested by the respondent, the court should conclude that the applicant falls within the statutory definition of a dangerous offender and should, as such, be made subject to an extended sentence.

We have formed the view that the provisions of section 11(3) of the Criminal Appeals Act 1968 militate against taking that approach as a sensible response to this appeal. In any event, even were it open for us to do so, essentially for the reasons given by the judge, we do not consider that an extended sentence is necessary or required in this case. Notwithstanding the risks which were identified in the pre-sentence report, this applicant will be serving a lengthy sentence and given the unusual context of this offending and the prospects for his rehabilitation, which we note and would endorse that he is making good use of his time in custody, we are satisfied that it is not necessary to impose an extended sentence in this case.

The outcome is therefore for all of these reasons that the application for permission to appeal is granted and the appeal is allowed to the extent of quashing the sentence of 22 years under count 7 imposed for an offender of particular concern, and replacing it with a determinate sentence of 21 years to which all of the other sentences will, as currently formulated, run concurrently, leading to an overall sentence of 21 years' imprisonment to be served.