Jeffrey L [2019] EWCA Crim 1588

Jeffrey L [2019] EWCA Crim 1588 concerned an appeal against sentence by a man convicted of multiple sexual offences against his stepdaughter; the Court of Appeal (Sir John Royce, Lord Justice Holroyde and Mr Justice Julian Knowles) allowed the appeal in very limited part, varying two sentences to cure an unlawfulness but leaving the overall sentence unchanged.

Mr L, aged 51 at appeal, had been convicted on 5 March 2018 at Swansea Crown Court of multiple sexual offences and was sentenced on 22 May 2018. On counts 1, 2 and 3 (indecent assault) he received six months’ imprisonment concurrent. On counts 4 and 5 (indecency with a child) he received four years concurrent. On counts 6 and 7 (indecency with a child) he received 11 years comprising a custodial term of 10 years and an extended licence of one year under section 236A of the Criminal Justice Act 2003. On counts 9, 10 and 11 (rape) and count 13 (rape of a child under 13) he received sentences of 19 years, each comprising a custodial term of 18 years and an extended licence of one year. On count 14 (sexual assault) he received six months concurrent. All sentences were ordered to run concurrently. A sexual harm prevention order and a restraining order, both until further order, were imposed.

The offending involved the systematic sexual abuse of HF from when she was aged between eight and 15. Mr L had begun a relationship with HF’s mother in 1999 when HF was seven and the couple later married. He groomed HF from the age of eight, beginning with kissing and touching. After the family moved to Newport he forced her to masturbate him on four or five occasions and forced his penis into her mouth approximately six times. The abuse escalated further when the family moved to Droitwich and HF was aged between nine and 10; Mr L performed oral sex on her and raped her approximately twice a week over a period, ejaculating inside her each time. He told HF that no one would believe her and threatened to prevent her from seeing her father if she disclosed the abuse. The offending ceased only when HF moved in with her father, save that Mr L raped her again during the summer of 2007 when she was 12 and visiting her mother, and continued to assault her at age 15 by touching her leg when they were in a car together. HF made a disclosure to Pembrokeshire Social Services in September 2016, which led to a police referral. Mr L was interviewed on 26 October 2016 and denied the offences. A victim personal statement from HF indicated that her life had been completely ruined; she had experienced difficulty at school and had self‑harmed.

The Recorder sentenced on the basis that counts 1, 2, 3, 4, 5, 6, 7 and 14 fell into category 3A of the relevant guideline. He placed count 8 into category 2A. As to the rape counts 9, 10, 11 and 13, the Recorder stated that whilst each individually might fall within category 3A, he had to reflect the fact that this was a course of conduct involving very many rapes committed over a period of time against a young child, and he therefore had no hesitation in using category 2A as the basis for those sentences. The Recorder recognised that counts 6, 7, 9, 10, 11 and 13 qualified as offences of particular concern under section 236A of the Criminal Justice Act 2003. He described the offending as dreadful, committed over a long period against a child in the appellant’s care, and noted that HF’s victim personal statement described both her childhood and her relationship with her mother as completely ruined. Mr L had seven previous convictions for 15 offences between 1979 and 1989, none of which was relevant.

The Registrar of Criminal Appeals had noted that the sentences on counts 6 and 7 were unlawful, in that the maximum sentence available for those offences was 10 years, whereas the sentences passed totalled 11 years. There was no dispute between the Crown and the appellant that the appropriate course was to reduce those sentences to nine years’ custody with one year extended licence.

On behalf of Mr L, Mr Underhill submitted that counts 9, 10, 11 and 13 should have been placed within category 3A of the guideline rather than category 2A, although he accepted that by reason of the volume of offences the Recorder would have been justified in moving to category 2A. Mr Underhill contended that the resultant sentence exceeded the ceiling in category 2A and was therefore manifestly excessive.

Mr Wright for the Crown responded that the offending amounted in effect to a campaign of rape, although the Recorder had not used that phrase. The evidence, which the Recorder apparently accepted, was that the rape offences had occurred approximately twice a week between the ages of nine and 10. Rapes on that scale could with justification be described as a campaign. In any event the other offences of indecent assault and indecency with a child would themselves attract a substantial sentence of imprisonment.

The court held that, standing back and considering whether the total sentence was wrong in principle or manifestly excessive, the answer was that it was neither. The court came to the firm conclusion that, apart from the adjustment of the sentences on counts 6 and 7 to cure the unlawfulness, the appeal must fail. The court emphasised that the adjustment made no difference to the total sentence, as all sentences had been ordered to run concurrently.

In short, the appeal was allowed only to the very limited extent of reducing the sentences on counts 6 and 7 from an unlawful 11 years to a lawful 10 years (nine years’ custody plus one year extended licence), leaving the overall concurrent sentence of 19 years undisturbed.