KB [2019] EWCA Crim 1031

KB [2019] EWCA Crim 1031 concerned an Attorney General’s Reference under section 36 of the Criminal Justice Act 1988 by the Solicitor General, in which the Court of Appeal (Lord Justice Davis, Mrs Justice Simler DBE and the Recorder of London) granted leave and allowed the reference, increasing the sentence imposed on the offender.

The offender, a 48‐year‐old man, had been convicted on 6 March 2019 after trial in the Crown Court at Guildford of five sexual offences against his effective stepdaughter, S, who was born in 1997. The convictions were on counts 1 and 2, sexual activity with a child contrary to section 9(1) of the Sexual Offences Act 2003, and counts 3, 4 and 5, sexual activity with a child family member contrary to section 25 of the Act. Count 5 was charged as a multiple incident count involving at least five occasions. The Recorder had sentenced the offender concurrently to five months’ imprisonment on count 1, four years on count 2, and five years on each of counts 3, 4 and 5, resulting in a total sentence of five years’ imprisonment. A Sexual Harm Prevention Order was also made. Five further counts, including allegations of rape of S and of S’s mother (who had been the offender’s partner), had resulted in acquittal and played no part in sentencing.

The offending had occurred between approximately 2000 and early 2014, during which time the offender had been in a relationship with S’s mother and S had lived in the home. Count 1 reflected an incident when S was around 12 in which she and the offender would playfully touch his penis over his clothing. Count 2 related to an occasion in 2011 or 2012 when S was aged 13 or 14, when, after she had begun to masturbate under a blanket, the offender removed the blanket and inserted his fingers into her vagina. S had told him that what had occurred was wrong because of her age, and sexualised behaviour then ceased for a period. Once S turned 16, however, the offender resumed sexual contact with her. Count 3 concerned an occasion when the two had a meal together, S drank alcohol and was quite drunk, and they had sexual intercourse in the living room. Count 4 reflected an incident on Father’s Day 2014 when the offender booked a hotel room, lied to S’s mother about their absence, and the two drank alcohol and had sex. Count 5 was a multiple incident count involving at least five further occasions on which the offender had sex with S. S stated that she had had sex with the offender on over a hundred occasions, that she always drank alcohol beforehand, that she felt obliged to have sex and felt sexualised, and that the offender sometimes bought her presents in exchange for sex. No contraception was used, and the offender also took photographs of S posing in underwear he had purchased for her.

The offender was arrested in October 2014 after a relative of S contacted the police, and he gave no comment in interview. There followed what the court described as an appalling and inexplicable delay, for which the offender bore no fault. Charges were not brought until 2017, and the trial did not take place until early 2019. A trial listed for September 2018 had been abandoned owing to inadequate disclosure of Social Services records. The court stated that it had been given no explanation for this delay and that it appeared no possible explanation existed. The court directed that enquiries be made to ensure such a situation did not recur, describing the delay as wholly unacceptable, utterly unfair to both the offender and the complainant, and entirely contrary to the good administration of justice.

At trial, the offender denied any sexual contact with S before she reached the age of 16, thus denying the matters charged in counts 1 and 2. He admitted a sexual relationship with her after she turned 16, which he described as consensual, and his defence to counts 3, 4 and 5 was that he was not to be regarded as S’s stepfather or in a family relationship with her. The jury rejected that argument and convicted on those counts. A victim personal statement from S described her becoming dependent on alcohol in her teens, which she attributed to the offender giving her considerable quantities of alcohol, and stated that the experiences had affected her ability to trust men, had led her to engage in a pattern of promiscuous behaviour to normalise her experiences, and had caused mental health problems.

Before the Recorder, categorisation under the relevant sentencing guidelines was agreed. Count 2 fell within category 1A, with a starting point of five years’ imprisonment and a range of four to ten years. Counts 3, 4 and 5 also fell within category 1A, with a starting point of six years’ imprisonment and the same range. These starting points applied to a single offence. Category 1A was justified by penetration of the vagina (harm) and the significant disparity in age, grooming behaviour, the use of alcohol, the degree of planning and the recording of images (culpability). There was also a significant abuse of trust in relation to counts 1 and 2. Count 1 fell within category 3A, with a starting point of 26 weeks’ imprisonment after a contested trial. The offender was of previous good character, with no convictions or cautions of any kind, and character evidence testified to him being a good and kind man. The Recorder refused an application to adjourn for a pre-sentence report and rejected a submission by counsel that sentence be suspended.

In his sentencing remarks, the Recorder stated that the law relating to counts 3 to 5 existed not just to protect young people from others but to protect them from themselves, and rightly emphasised that the effect of the offender’s behaviour had been to make S utterly sexualised. The Recorder indicated that the offender had not appreciated that it was an offence to have sexual activity with S once she was 16, though the offender was wrong in that belief. The Recorder referred in detail to the appropriate categorisation under the guideline and stated that he reduced the sentence by at least a year to reflect the delay. He announced concurrent sentences as already described but did not expressly indicate that he had loaded the sentence on any one count to reflect the totality of the offending.

On behalf of the Solicitor General, Mr Joel Smith submitted that the sentence was unduly lenient, principally because the Recorder had failed properly to reflect the multiple incidents of offending, the lengthy period over which the offending took place, the use of alcohol, the giving of gifts in exchange for sex, the significant age disparity, the recording of images, the ejaculation without contraception, and the inevitable impact on S. The Recorder’s sentencing remarks were focused on individual counts and the guideline, but he nowhere spelled out that the offender had to be sentenced for five counts, one of which was itself a multiple incident count. The ultimate sentence was of the order that might be expected for a single incident of sexual activity with a family member, even when account was taken of aggravating factors. Mr Smith contended that the Recorder had failed to have regard to the totality of the offending and the numerous aggravating factors, resulting in a radical and inexplicable departure from the guideline.

On behalf of the offender, Miss Trina Little understandably stressed the very great delay and its effect on the offender. She emphasised that the Recorder was very experienced, had had the benefit of conducting the trial, and would have had a good feel for the case. The court accepted that the delay had a significant impact and that the Recorder had had the benefit of the trial, but held that those matters did not of themselves preclude criticism of the sentence.

The Court of Appeal held that the sentence was unduly lenient. The court was in no doubt that the sheer number of incidents and the gravity of the conduct pushed the matter well above the guideline starting points for the relevant offences. The activity had begun whilst S was under 16 and been resurrected after she turned 16. Viewed overall, this was a very serious matter. In ordinary circumstances, the court stated, one might well have expected a sentence of not less than nine years’ imprisonment, perhaps approaching ten. However, the court had full regard to the mitigation available, in particular the offender’s previous good character and above all the grave delay, which unquestionably required a significant reduction. The court concluded that the least sentence that could properly be passed was seven and a half years’ imprisonment. The court quashed the sentence of five years on count 5 and substituted a sentence of seven and a half years’ imprisonment. All other sentences remained and continued to run concurrently.

In short, the Court of Appeal allowed the Attorney General’s Reference, finding that the Recorder had failed adequately to reflect the totality of the multiple offences and the aggravating features, and increased the total sentence from five years to seven and a half years’ imprisonment despite giving weight to the inexcusable delay.