R v Robert Burns

On 9 July 2025 the appellant pleaded guilty to the offences which are outlined below and was committed for sentence to the Birmingham Crown Court by the Birmingham Magistrates' Court. On 31 October 2025 he was sentenced on the committal as follows: Under charge 1, which was a possession of a prohibited image of a child, contrary to section 62(1) and 66(2) of the Coroners and Justice Act, he was sentenced to 4 months concurrent to the other sentences which were imposed. Charge 8 was breach of a sexual harm prevention order, contrary to section 354(1) and (4) of the Sentencing Act 2020, for which he was sentenced to 30 months' imprisonment concurrent. Charge 10 was possession of an extreme pornographic image, contrary to section 63(1)(7)(d) and 67(3) of the Criminal Justice and Immigration Act, for which he was sentenced to a concurrent sentence of 4 months’ imprisonment. Charge 11 was making an indecent photograph of a child, contrary to section 1(1)(a) and (6) of the Protection of Children Act 1978, for which he was sentenced to 18 months concurrently. Charge 12 was making an indecent photograph of a child, contrary to section 1(1)(a) and (6) of the Protection of Children Act 1978 for which he was sentenced to 6 months’ imprisonment concurrently. Charge 13 was making an indecent photograph of a child, contrary to section 1(1)(a) and (6) of the 1978 Act, for which he was sentenced to 4 months’ imprisonment concurrently. Charge 14 was a charge of an adult attempting to engage in sexual communication with a child, contrary to section 1(1) of the Criminal Attempts Act 1981 and he was sentenced to 12 months' imprisonment concurrently on that charge. Finally, charge 15 was attempting to arrange or facilitate the commission of a child sex offence in the form of sexual assault of a child, contrary to section 14 of the Sexual Offences Act 2003 and section 1(1) of the 1981 Act. For that charge, which the judge took as the leading charge in the committal, he was sentenced to an extended sentence of 9 years being comprised of a custodial term of 4 years and a 5-year extended licence period. Thus the total sentence imposed upon him was an extended determinate sentence of 9 years pursuant to section 279 of the 2020 Act, comprising a custodial term of 4 years and an extended licence period of 5 years.

The facts of the offending were as follows. The appellant had previous convictions for sexual offences which are set out below. As a consequence he was the subject of a sexual harm prevention order ("SHPO") and sexual offenders notice. On 29 February 2024 the appellant received a visit from his offender manager and he was noticed to be sliding something under his mattress in order to conceal it. He pretended that this was an old DVD player but on further inquiry it emerged that the appellant was in fact in possession of a Moto phone which was not registered. When it was sent for download, it contained 280 still and six moving category A images, 228 still and five moving category B images and 754 still and one moving category C images. The images and videos were of boys aged between 7 and 10 years, engaging in a variety of sexual acts and they formed charges 11, 12 and 13 in the committal.

The device was also found to have the platform Telegram installed on it and that application had been used to contact multiple other accounts inquiring about buying child abuse videos and renting children for sexual purposes. The appellant specifically requested children between the ages of 5 and 11. Images were provided to the appellant along with the enquiries about the obtaining, and the availability, of children. No actual transactions took place. It also became apparent that the appellant had used the platform "Session" on the phone under the nickname "Sexy89" to engage in two conversations with other users who stated they were children, the first being 9 and the second saying that he was under 13. The conversation involved the discussion of sexual topics and indecent images were sent and received. The appellant also used the Atox platform under the nickname "Sexyboy89", and engaged in multiple conversations with children, one of whom said he was 8 years old. The discussions concerned sexual abuse of children and drugs. In addition, the search on the phone found extreme pornographic images and two visits to a cached website containing bestiality images, four of which were found on the phone.

The appellant answered "no comment" in interview with the police. He has a significant prior criminal history involving repeated child sexual offences. In December 2019, the appellant was convicted of four counts of arranging or facilitating the commission of a child sex offence and three counts of making indecent photographs or pseudo photographs of children, for which he was sentenced to 16 months' imprisonment and made the subject of the SHPO referred to above. Subsequently on 19 August 2024 the appellant was sentenced to 20 months' imprisonment for two counts of breach of the SHPO and three counts of making indecent photographs or pseudo photographs of children.

To assist the judge with the sentencing exercise the judge had the benefit of a pre-sentence report, which recognised the appellant as a very high risk registered sex offender. The author noted that the appellant had a full understanding of the restrictions placed upon him by previous court orders and nonetheless took full responsibility for the offending and admitted to fantasising about having sex with a male child and seeking out like-minded individuals in the hope of being provided with a male child for this purpose.

There were reports produced in support of the appellant's mitigation. In a psychiatric report from Dr Meganty the appellant is noted to be suffering from a recurrent depressive disorder involving low mood, tiredness, lack of motivation and thoughts and acts of self-harm. In addition the appellant is noted to have cognitive functioning at the lowest end of normal, lacking the cognitive maturity of a person of his chronological age. Notwithstanding this he would have understood the nature and quality of his actions and that they were illegal. It was said by Dr Meganty that he would benefit from a sex offender treatment programme and would find a prison sentence stressful.

In a psychological report from Dr Longwell the appellant's cognitive limitations were reinforced by testing, which showed that whilst his verbal and perceptional reasoning abilities were in the average range, his working memory and processing speed are below average placing him in the low average range of general intelligence. Dr Longwell records the diagnosis of depression and anxiety. She noted various problematic personality traits but most pertinently concludes that the appellant has ASD on the basis of his self-reporting screening assessment.

Dr Longwell notes, akin to the author of the pre-sentence report, that this prevents him from being able to connect emotionally with the harm that sexual offences do to those who are the victim of them. Dr Longwell makes a number of recommendations for the treatment of the appellant to address the risk that he presents of sexual violence. She rated his risk of sexual offending as moderate to high in the absence of intervention and rehabilitation opportunities.

The judge sensibly structured her sentence around a lead offence for which she took as charge 15 and then undertook an uplift in the sentence for that offence to reflect the other charges to which the appellant had pleaded guilty. The relevant guidelines were as follows: for indecent images, category A image, a starting point of 1 year and a range of 26 weeks to 3 years; for category B images a starting point of 26 weeks and a range of a high-level community order to 18 months' imprisonment; and for category C images a starting point of high-level community order and a range of a medium level community order to 26 weeks. For breach of the SHPO, this was a culpability A offence within category 1, which had a starting point of 3 years and a range of 2 to 4½ years. For the offence of attempting to engage in sexual communication with a child the judge concluded that this was culpability A with harm at level 1, with a starting point of 18 months and a range of 9 months to 2 years.

For attempting to arrange or facilitate the commission of a child sex offence, the judge formed the view that the offence the appellant was seeking to arrange amounted to a sexual assault of a child on the basis that was an agreed position between prosecution and defence.

The judge noted that the offending occurred while the appellant was the subject of supervisory orders. She indicated that she was giving maximum credit for his plea. She further indicated that she had seen the reports which are noted above, and in particular the nature and extent of the risks which the appellant poses to children. Having reflected on these issues she concluded that the least sentence she could impose was 4 years' imprisonment which, in the light of her conclusion that an extended sentence was required in this case, led to the imposition of the sentence of 9 years being 4 years of custodial element and 5 years of extended licence.

The appellant's grounds of appeal are that the sentence did not reflect the overlap with the earlier offences for which the appellant had been sentenced. Secondly, that the sentence did not adequately reflect the factors documented in the psychiatric and psychological reports. Thirdly, that offence 15 should have been found to be in category 2A. Finally, the overall offending did not justify an extended sentence of 9 years.

We are unable to accept the first and third grounds which can be dealt with shortly. The judge identified that the offences with which this appeal was concerned were to be addressed separately from the offences for which the appellant had previously been sentenced and there was no substance, as she observed, during the course of the appellant's mitigation in the submission that little additional punishment would have been imposed for these offences over and above the earlier sentence. These were firstly separate offences and secondly, more serious offences. The earlier convictions and sentencing were of very limited weight in the sentencing exercise for the judge on this occasion.

In relation to the categorisation of the offence, it appears that the categorisation was not questioned before the judge. However, in our view, in any event, that categorisation was accurate and was gauged by an assessment of the nature of the activity that the appellant would have engaged in as part of the sexual assault which he had in mind to commit. This would have involved category 2 factors, such as touching the proposed victim’s genitalia and culpability A in terms of the planning involved, engaging with others in committing the offence and potential commercial exploitation which is involved. This conclusion gives rise to a starting point for this offence alone of 4 years without regard to the aggravating features which are obviously present in this case and the other charges for which the appellant fell to be sentenced.

The Single Judge in this appeal essentially granted leave on the point related to the appellant's mental disorder and the apparent failure to apply the sentencing guidelines in relation to sentencing those with a mental or developmental disorder. The judge did not expressly or directly deal with this aspect of the appellant's case. But she was clearly aware of the contents of the report which provides the evidence in this connection. The evidence undoubtedly engaged the application of the sentencing guidelines for those with mental and developmental disorders. The guidelines provide that an impairment or disorder from which an offender is suffering may be relevant to the assessment of culpability if there is sufficient connection between the impairment and the offending behaviour. In this case, on the one hand, it is clear that the appellant was fully aware that his behaviour was illegal and in breach of the restrictions which have been imposed upon him. It is also clear that his diagnosis of ASD and his lack of empathy along with his cognitive function will have affected his ability to understand the nature and consequences of his actions. In our view, this factor has to be taken into account in the sentencing exercise as part of the personal mitigation available to the appellant alongside his plea of guilty at the earliest opportunity. In addition, his regular attendance at probation appointments and the impact to his quality of life that his mental conditions are having upon him are also part of his personal mitigation.

On the other side of the balance there were significant aggravating factors which had to be taken into account. The previous convictions in this case alongside the repetitive breaches of the SHPO weighed heavily against the appellant in the sentencing exercise. The troubling content of all of the reports with the appellant presenting a very concerning picture in relation to the very high risk of significant harm that he presents to children, both justified increases in the overall sentence and the determination that the appellant should be made the subject of an extended sentence.

The issue is therefore how to resolve these factors in the context of the appropriate sentences indicated by the guidelines for each of the offences to which the appellant pleaded guilty. The custodial term that the judge imposed was one of 6 years prior to the reduction for guilty pleas. This sentence had to take account of the aggravating as well as the mitigating factors which we have alluded to and in particular, and had to account for all the other offences which were identified as part of the committal. This represented a significant escalation of the appellant's offending alongside a persistent pursuit of offences related to child sexual offending. Notably, this sentence was still within the range provided by the guidelines for a single offence of this type taken alone.

In our view, taking into account all the factors the custodial term which the judge alighted upon cannot properly be described as either manifestly excessive or wrong in principle. In the light of the risk assessments provided in the reports no exception can be taken to the imposition of the extended sentence, and the extended licence term was clearly merited in the light of the clear message of the reports that the appellant requires treatment and intervention if his risks are to be managed.

In the circumstances, therefore, and notwithstanding Mr Adris's careful and focused submissions, this appeal must be dismissed.