R v AGY

The provisions of the Sexual Offences (Amendment) Act 1992 apply to these offences. 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 the 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. It has been necessary to anonymise the appellant in this case, because of the risk of jigsaw identification of his victims. Accordingly, the appellant is referred to as "AGY".

On 2 February 2026, following a trial in the Crown Court at Warwick before His Honour Judge Walsh (“the judge”) and a jury, the appellant was convicted of the following offences: sexual assault of a child under 13, contrary to section 7(1) of the Sexual Offences Act 2003 (Count 1); causing or inciting a child under 13 to engage in sexual activity, contrary to section 8(1) of the 2003 Act (Count 3); and indecent assault, contrary to section 14(1) of the Sexual Offences Act 1956 (Count 4). The appellant was acquitted of Count 2 (sexual assault of a child under 13) and Count 5 (indecent assault), which were multi-incident counts.

On 13 March 2026 the appellant, then aged 80, was sentenced by the judge as follows: on Count 4, to a determinate sentence of three years' imprisonment; on Count 3 to a consecutive extended sentence, comprising a custodial term of five years and an extended licence period of four years; and on Count 1, to a concurrent sentence of one year's imprisonment. The judge also made a Sexual Harm Prevention Order prohibiting unsupervised contact or communication with anyone under the age of 18, which was to last until further order.

The appellant now appeals against his sentence with the limited leave of the single judge. Insofar as leave was refused in relation to one of his grounds, he renews the application for leave before the Full Court.

The victim in relation to Counts 1 and 3 was the appellant's great-granddaughter who was 7 years old when the offences were committed between 22 January 2022 and 6 August 2023. The victim would sometimes stay over at the appellant's home and on one such occasion the appellant had touched her in the vaginal area (Count 1). On another occasion, the appellant had exposed his penis and testicles to her and then, after re-clothing himself, had taken the victim's hand and had placed it on his penis over his clothing (Count 3). When the victim told him to stop, the appellant had said "Don't be shy". The victim also told the police that the appellant had taught her to "hump" a pillow and said that she should stop when it felt "nice" and that she should practise this every day after school. This allegation was not the subject of a separate charge. The victim subsequently informed her mother who confronted the appellant, but he said that the allegations were "lies". The offending was later reported to the police by the victim's mother.

The victim on Count 4 was the appellant’s granddaughter and the aunt of his other victim. The offending against her occurred between 12 October 1994 and 11 October 1995, when she was around 10 years of age. The appellant had been asked to help the victim with mathematics, and she would also play games on his computer. When the victim had been sitting on the appellant’s lap whilst using the computer, he undid the victim's jeans and placed his hands under the lining of her underwear above her vagina (Count 4). That offending had been reported to the police when the victim had been around 15 years old, but no further action was taken by police at that stage or when a subsequent complainant was made in 2003.

The appellant was arrested on 8 August 2023 and was interviewed by police. He denied assaulting his great-granddaughter. He admitted she had touched him inappropriately once but stated this had been when she had been touching his lower abdomen area and had momentarily touched his penis. He denied that he had received sexual gratification from this. When he was further interviewed in November 2023, he denied sexually assaulting the victim in Count 4.

The appellant was of previous good character.

A Victim Personal Statement was before the judge from the mother of the victim on Counts 1 and 3. She described how the family had been torn apart. They had moved house as they lived to near to the appellant and the victim no longer felt safe. This also meant that the victim had had to change schools and she had undergone counselling. Giving evidence had been very stressful and distressing for her, as it had been for the other immediate family members.

A Victim Personal Statement was also provided by the victim on Count 4. The appellant's offending had hung over her for three decades. As a child, she had felt trapped in the appellant's house after it occurred. She described the devastating effect upon her relationships with family members, many of whom did not believe her when she had earlier reported the abuse, so that she felt like an outcast. The police's decision to take no action at that stage made her feel worthless. She described how her schooling and subsequent employment had been disrupted, how she had turned to drugs, and how she had to take long-term medication for her mental health, including for anxiety and panic attacks.

The judge had the benefit of a pre-sentence report (“PSR”), albeit its author had proceeded on the erroneous assumption that the appellant had also been convicted of the multi-incident counts. The author observed that the appellant remained in complete denial of his offending; he showed no empathy for the victims and continued to try to discredit them. The author noted that the appellant was in good physical and mental health. However, he was a full-time carer for his wife, who would have to go into a care home if he received an immediate custodial sentence, as there was no one else to care for her. The author assessed the appellant as posing a medium to high risk of further sexual offending and a high risk of serious harm to children, particularly pre-pubescent children. Given his ongoing denial of his offending, offence focused work to lower the risk that the appellant posed was a largely pointless exercise.

The judge explained that he would pass consecutive sentences given the gap in time between the offences and the fact that there were two separate victims. He said that he would adjust the terms to ensure the overall sentence he imposed was just and proportionate. No issue is taken with that approach.

So far as the appellant's great-granddaughter was concerned, the judge took Count 3 as the lead offence. He identified it as falling into Category 3A of the applicable guideline. He rejected the Crown's submission that the harm was at level 2 because of her extreme youth or particular vulnerability. Culpability A applied as the offence involved a gross breach of trust and it followed grooming behaviour. A Category 3A offence had a starting point of five years' custody and a range of three to eight years' custody. The judge identified Count 1 as a 3A offence under the guideline for the sexual assault of a child under 13, for the same reasons.

The judge identified the modern-day equivalent to the offence charged in Count 4 as the sexual assault of a child under 13. He recognised that he must apply the maximum penalty as the law stood in the mid-1990s (ten years' custody); whereas the equivalent offence had a maximum of 14 years' imprisonment. The judge considered that under the modern guideline, the offence would have fallen into culpability category A because of the abuse of trust and harm level 2, to reflect the significant psychological harm which the judge was satisfied had been suffered by the victim. A category 2A offence had a starting point of four years' custody.

The judge noted the following aggravating features in relation to the Count 3 offence: that steps were taken to prevent the victim from reporting the abuse – the appellant had told her that it was her secret; that she was only 7 years old at the time of the offending; that it took place in the appellant’s home where she was, effectively, trapped; that she had suffered some psychological harm, albeit not sufficient to elevate the offending to a higher category of harm; and that account had to be taken of the offending reflected in Count 1.

The judge considered that the appellant's lack of previous convictions could be accorded little weight, given this was why he was placed in a position of trust with childcare responsibility. The judge said that he took account of the appellant's age; the effect that a custodial sentence would have upon him and upon his wife; and the fact that he had already faced a form of summary retribution by persons trying to take the law into their own hands.

The judge indicated that, considered in isolation, he would have imposed custodial terms of six years in respect of Count 3 and four years in respect of Count 4. However, he reduced each of these figures by a year to take account of totality.

The judge then addressed why he considered that the appellant was a dangerous offender. He referred to evidence of other sexualised behaviour towards the appellant's great- granddaughter that had been given at the trial but was not the subject of a specific charge. The judge was satisfied to the criminal standard that such behaviour had occurred. He was also sure that there were at least the beginnings of sexualised conversations with another family member. He referred to the ingrained and long-standing nature of the appellant's offending, his complete denial of the offending and the assessment of the author of the PSR of the risks he posed of re-offending. The judge said that the appellant had used pressure to achieve his sexual gratification, had been willing to take considerable risks to commit offences, and had demonstrated no insight into his offending. The judge observed that he had heard him give evidence and he was satisfied that the appellant was a calculating and manipulative man. The judge concluded that there was a significant risk that upon release from prison, the appellant would commit further specified offences and, by doing so, cause serious harm to one or more people. He acknowledged that the level of his risk could be mitigated to a degree upon his release by the imposition of stringent licence conditions and the terms of the Sexual Harm Prevention Order, but he considered that such protections would not reduce the risk sufficiently to below a significant level. He therefore considered that an extended sentence was required to provide the necessary protection for the public.

Mr Hunka raises no issue in respect of the sentence imposed for Count 1. In relation to Count 3, he accepts that the judge correctly categorised the offence as coming within Category 3A, but he submits that the circumstances were such that the judge should then have moved down considerably from the initial starting point and indeed imposed a sentence that was below the bottom of the category range, as the activity was far less serious than that which is commonly catered for by this category of the guideline and the victim was not incited to engage in sexual activity in the conventional sense. This was a single incident when the appellant guided the victim's hand to touch his penis through clothing. It was analogous to the offending under Count 1, and a similar sentence should have been imposed. Furthermore, it was wrong for the judge to have regard to the "humping" of the pillow allegation when this had not been the subject of a separate charge.

Secondly, Mr Hunka submits that the judge erred in categorising the Count 4 offence as involving level 2, rather than level 3, harm. He accepts that the victim suffered a real impact, but he submits that the harm was not of such a degree as to place the offence in level 2. Mr Hunka emphasises that this was a single incident of the appellant's hand going inside the waistband of the victim's underwear; that there was no touching of her vagina, still less "naked genitalia" as referred to in the level 2 category of harm under the guideline. Further, it was unclear how the judge made allowance for the differing maximum sentences and unclear how the mitigating factors were taken into account in relation to this sentence.

Thirdly, Mr Hunka submits that the finding of dangerousness was not justified in the circumstances of this case. Although he did not develop the point orally, in his written grounds he emphasised that the error made by the author of the PSR had infected the assessment of the degree of risk posed by the appellant. Mr Hunka also relied upon the appellant's age and the fact that he will be subject to the Sexual Harm Prevention Order upon his release. He said the reality was that the offending involved three incident some 25 years apart that were not as serious as in very many cases of this type. This was the ground upon which the single judge refused leave and upon which the application for leave is now renewed.

As we have indicated, no issue is taken with the judge's initial identification of Count 3 as a 3A offence under the guideline. From his reasoning, it appears that the judge did not adjust downwards from the initial starting point of five years, to reflect the circumstances of the appellant's offending. It also appears that he regarded the aggravating and mitigating features as roughly equivalent, save for the uplift of one year to reflect the offending on Count 1.

We consider that there is force in Mr Hunka's submission that the offending in this instance, whilst serious, was on a lesser scale that many offences that would fall within Category 3A. The terms of the guideline itself recognise that the starting point may be adjusted upwards or downwards in any particular case to reflect the particular features of culpability and harm. As we have noted, in this case the judge was dealing with a single incident of touching the appellant's penis over clothing for a short period of time. However, we do not accept that there was a basis for the judge to move below the category altogether, or indeed close to the bottom of it. The offence involved a very serious abuse of trust and thus squarely entailed Culpability A factors. In the circumstances, we consider that it would have been appropriate to move downwards from the starting point of five years to one of four years.

There is less force in Mr Hunka's other complaints about the sentence on Count 3. The judge rightly identified a number of substantial aggravating features in respect of the Count 3 offence, as we have already explained. Whilst there was also mitigation, the judge's reasoning indicates that he took those aspects into account. He was entitled to attach limited weight to the appellant's good character, for the reasons he indicated. We accept, as the judge must have found, that the aggravating and mitigating factors roughly balanced each other out. Further, it is misconceived for Mr Hunka to seek to equate the sentence on Count 3 with that imposed on Count 1, when Count 3 was rightly treated as the lead offence. The judge had to take account of the offence charged in Count 1, as the sentence on Count 3 was intended to reflect all of the appellant's offending in relation to his great- granddaughter. Accordingly, this would warrant an upwards adjustment from the figure of four years that we have just identified to one of five years.

The sentence on Count 3 then requires adjustment for totality, as the judge appreciated. Accordingly, an appropriate custodial term in relation to Count 3 was four years.

In relation to the modern-day equivalent offence identified for Count 4, the sentencing guideline makes clear that harm and culpability should only be identified by reference to the listed factors. The factors listed for Category 2 harm do not include the judge's reason (“significant psychological harm”) for finding that this category applied. Indeed, none of the listed factors applied in this instance. They include the touching of naked genitalia and where the offence involves a sustained incident. Accordingly, the judge should have identified Category 3A as the appropriate equivalent. This has a starting point of one year's custody and an offence range of 26 weeks to two years' custody. However, the judge would then have been fully justified in treating the significant psychological harm suffered by the victim as a substantial aggravating factor, along with the fact that the offending took place in the appellant's house. We consider that these aspects significantly outweighed the mitigating factors, so that the appropriate sentence under this guideline would have been in the region of two years' imprisonment.

However, this figure then falls to be adjusted to take account of totality and the different maximum sentences. Accordingly, we consider that the appropriate figure on Count 4 is one of 18 months' imprisonment.

We refuse leave to appeal in relation to the judge's finding of dangerousness. The judge presided over the trial and had the benefit of hearing the evidence of the appellant and that given by his victims. The judge was best placed to make this assessment. He was fully aware that the appellant had been acquitted on Counts 2 and 5, but he was entitled to take account of the additional matters to which he referred when assessing the future risk posed by the appellant. He was aware that the appellant had not recently offended, but he was understandably troubled by the appellant's continuing complete denial of his offending and his lack of any insight. Accordingly, the finding of dangerousness was not arguably wrong. However, in light of our conclusion regarding the sentence on Count 3, we will reduce the licence extension period that was imposed from four years to three years.

It follows that we will allow the appeal to the extent we have indicated. We will quash the determinate sentence imposed on Count 4 and instead impose a standard determinate sentence of 18 months' imprisonment on that count. We will quash the extended sentence imposed on Count 3 and impose in its place an extended sentence of seven years, comprising a custodial term of four years and an extended licence period of three years. This will run consecutively to the sentence on Count 4. The concurrent sentence on Count 1 remains undisturbed.

The appellant will first serve the determinate sentence we have imposed on Count 4. The general rule is that he will serve half of this term in prison. The appellant will then serve two thirds of the custodial period we have imposed in relation to Count 3, before the Parole Board will consider whether it is safe to release him and, if so, on what terms. Once released, he will then be subject to the extended licence for the further period of three years. If, when subject to licence, the appellant commits another offence or fails to comply with the terms of his release, he will be liable to be recalled to custody and may serve the entire sentence in custody.

Lastly, the judge imposed the Victim Surcharge in relation to Counts 1 and 3. He had no power to do so. A surcharge order under the Criminal Justice Act 2003 (Surcharge) Order 2012 only applies where all the offending before the court was committed on or after 1 October 2012: see R v WHD [2024] EWCA Crim 99 at [45]. We will therefore quash the victim surcharge order.