X [2019] EWCA Crim 1134

X [2019] EWCA Crim 1134 is an appeal by leave of the single judge against extended sentences imposed by His Honour Judge Lowe at Cambridge Crown Court on 15 February 2019 for sexual offences against two children under thirteen. The Court of Appeal (Criminal Division), comprising Lady Justice Thirlwall, Mr Justice Martin Spencer and His Honour Judge Mayo QC, dismissed the appeal.

The appellant pleaded guilty to two indictments. The first concerned ES, a seven‑year‑old boy. ES was the grandson of the appellant’s wife, S, whom the appellant had married in 2004. In June 2017 S saw the appellant’s penis exposed on more than one occasion in the presence of ES, heard ES say he did not want to take his shorts and pants down, and later learned from ES that the appellant had exposed himself and touched ES’s penis and anus. ES told police in interview that on multiple occasions the appellant had touched his penis skin‑on‑skin, sometimes in the living room even whilst his grandmother was present. The first indictment contained four counts: count 1 reflected the appellant rubbing ES’s penis in the kitchen and bedroom during hide‑and‑seek; count 2 reflected the appellant touching ES’s anus whilst ES sat on his lap; count 3 reflected indecent exposure in the kitchen, living room and bedroom; count 4 reflected an occasion in the bedroom when the appellant exposed himself, turned over and exposed his backside to ES, and asked ES to touch him. The appellant was arrested on 7 July 2017. He initially denied the allegations but on 11 December 2018 indicated guilty pleas to all four counts. He was released on bail.

The appellant moved out of the matrimonial home and became the neighbour of M, who had a five‑year‑old grandson, FP. The appellant became a regular visitor to M’s house when she was looking after FP. M and FP’s parents knew nothing of the allegations or the appellant’s bail status. On 20 December 2018, nine days after the appellant had indicated guilty pleas in relation to ES, the appellant committed two further offences against FP. FP told his father that on that day, whilst alone with the appellant, the appellant had pulled down his trousers and pants and kissed him on the bottom and made noises. FP told police this had happened twice, once in the bedroom and once in the living room. The appellant was arrested and initially lied, claiming that FP’s trousers had come down accidentally and that he had blown a raspberry on FP’s back. He subsequently pleaded guilty to two counts of sexual assault of a child under thirteen on the second indictment.

The appellant was aged seventy‑five and of previous good character. A pre‑sentence report assessed him as posing a high risk of serious harm to children. The author noted that the appellant struggled to recognise the long‑term effects on his victims, that he held attitudes supporting sexual attraction to and offending against children, and that he had demonstrated no desire to desist, having continued to offend whilst going through the court process. The author expressed concern that there was likely to have been further concerning behaviour in the past, as it would be extremely unusual for someone to begin sexual offending in their seventies. The appellant accepted very little responsibility and denied that his offending was sexually motivated. Victim personal statements from the parents of both boys described profound changes in the children’s behaviour, their distress, anger and isolation, and the harm to family relationships.

The learned judge identified counts 1 and 2 of the first indictment as falling within category 2A of the Sexual Offences Definitive Guideline in relation to sexual assault of a child under thirteen, carrying a starting point of four years’ custody and a range of three to seven years. He treated the offences in the second indictment as similarly serious, with aggravating features that FP was even younger, that the offences were committed in FP’s own home where he was entitled to feel safe, and that they were committed whilst the appellant was on bail for the offences against ES. The judge found the appellant dangerous within the meaning of the statutory test, emphasising that the appellant was prepared to take significant risks in committing the offences under the noses of the children’s grandmothers and that the commission of the second set of offences whilst on bail indicated an attitude not susceptible to deterrence. The judge concluded that there was a significant risk that the appellant would commit further specified offences causing serious harm to other children and that an extended licence period was necessary to protect the public.

The judge imposed an eight‑year extended sentence on the two main counts of the first indictment, comprising five years’ custody and a three‑year extended licence, with concurrent determinate sentences on the remaining counts of that indictment. He explained that the sentence after trial would have been six years, reduced to five years to give appropriate credit for the guilty plea. For the two offences on the second indictment he imposed concurrent sentences of two years’ imprisonment, reflecting a full one‑third discount from a three‑year starting point after trial. The judge stated that he had considered the principle of totality, the appellant’s age and lack of previous convictions, and had kept the custodial element as short as possible consistent with the seriousness of the offending.

On behalf of the appellant, Mr Spasojevic, a solicitor advocate, argued that the judge gave inadequate credit for plea and that the cumulative effect of the sentence with a seven‑year custodial element and three‑year extension was manifestly excessive. He submitted that inadequate regard was had to the appellant’s age and good character, and that the starting points were too high given the nature of the behaviour, the lack of coercion or intimidation, the lack of any attempt to stop the boys speaking out, and the relatively short period over which the offences were committed. He renewed the submission that it was unnecessary to impose an extended sentence when adequate protection would be afforded by a sexual harm prevention order and the notification requirements for an indefinite period. He contended that insufficient regard was paid to the principle of totality and insufficient credit given for plea.

The Court of Appeal rejected each ground. Mr Justice Martin Spencer, giving the judgment of the court, held that the learned judge was entitled to make the finding of dangerousness for the reasons he gave, namely the risks the appellant was prepared to run in committing offences under the noses of the victims’ grandmothers. The court treated it as a striking feature that the offences against FP were committed despite the jeopardy the appellant faced, having admitted the offences against ES only eight days previously. The court accepted that the judge was entitled to follow the view expressed in the pre‑sentence report that the appellant posed a serious risk of serious harm to children, not only the two victims but other children to whom he might gain access through family or friendships. The author had expressed the view that the appellant had used grooming behaviours to gain the trust of the boys and had significantly breached that trust for his own sexual gratification. Taking all those matters into account, the court held that the finding of dangerousness and the imposition of an extended sentence were justified.

So far as credit for plea was concerned, the court held that the degree of credit lay within the discretion of the learned judge given the stage at which the guilty pleas were indicated. The court accepted that other judges might have taken a different view but held that it was not an error to give the credit that he did. On the length of sentence, the court accepted that the sentences were undoubtedly at the upper end for offences of this nature but held that they were not manifestly excessive. The court considered that consecutive sentences were appropriate where the appellant had committed the further offences whilst on bail for the first group, that the learned judge had appropriately followed the Sentencing Guidelines, and that he had due regard to the principle of totality, particularly in relation to the sentences on the second indictment. In short, the court held that the overall sentence, whilst severe for this appellant, was not manifestly excessive, and dismissed the appeal.