Patrick Byrne [2019] EWCA Crim 1496
Summary
**Patrick Edward Byrne v R** [2019] EWCA Crim 1496 concerned an appeal against sentence by a 57-year-old man convicted after trial of sexual offences against a vulnerable child; the Court of Appeal (Lord Justice Hickinbottom, Mr Justice Edis and His Honour Judge Marson QC sitting) dismissed the appeal and upheld a total sentence of seven years’ imprisonment.
Mr Byrne had been convicted on 7 February 2019 at Derby Crown Court of twelve offences: six counts of sexual activity with a child contrary to section 9(1) of the Sexual Offences Act 2003 (counts 1, 2, 5, 6, 9 and 10) and six counts of causing or inciting a child to engage in sexual activity contrary to section 10(1) of the same Act (counts 3, 4, 7, 8, 11 and 12). On 13 February 2019 he was sentenced to a total of eight and a half years’ imprisonment, but the judge re-listed the matter on the following day and reduced the total term to seven years’ imprisonment, imposed concurrently on all counts.
The offences took place between approximately 6 August 2006 and 5 August 2009, when the victim was aged between 13 and 15 years. Mr Byrne had been a friend of the victim’s now-deceased grandparents and had known the boy from a very young age. The victim was a vulnerable child with autistic traits, communication difficulties and special educational needs. The offending involved Mr Byrne masturbating the victim and inciting him to masturbate Mr Byrne, with ejaculation occurring on occasions by both parties. The abuse took place repeatedly over the three-year period. In the course of persuading the victim to participate, Mr Byrne showed him pornographic material and shared alcohol with him, amounting to grooming and targeting of a vulnerable child. The victim reported the offending to police in 2015. Mr Byrne denied the allegations and was convicted after trial. A victim personal statement taken by the Achieving Best Evidence procedure in January 2017 showed that the victim remained fearful, expressing concern that Mr Byrne might find him through the internet. Mr Byrne had two very old convictions of a completely different nature.
The sentencing judge observed that Mr Byrne had said in evidence more than once that when the victim was 17 it was legal and there was nothing wrong with what he had done. The judge noted Mr Byrne’s age relative to the victim’s, the victim’s communication difficulties, and the lack of remorse. He found that Mr Byrne had committed the offences for his own sexual gratification. The judge treated as a serious aggravating feature the breach of trust involved, noting evidence that the victim’s grandparents had been so protective that they were very concerned about letting him out of the house, yet Mr Byrne had been admitted into this small and troubled family unit. The judge referred to grooming and the use of pornographic material, and described Mr Byrne as “morally corrupt, devilish and devoid of any kind of kindness” in his treatment of the victim. The judge correctly categorised the offences as falling within category 2A of the relevant guideline, with a starting point of three years’ custody and a range extending to six years for a single offence. He concluded that the aggravating features, together with the frequency and duration of the offending, required a substantial increase from the starting point. Having regard to the age difference and the victim’s vulnerability, he initially imposed eight and a half years but corrected this under the slip rule to seven years on the following day.
On appeal, Mr Bown on behalf of Mr Byrne submitted that the judge had overemphasised the aggravating features and that the characterisation of the appellant as “morally corrupt” or “devilish” was inappropriate given that the case was at the lower end of seriousness in terms of the character of the sexual activity itself. Counsel argued that the correct sentence should have been within the category range for a single offence.
The Court of Appeal, giving judgment through Mr Justice Edis, agreed that the word “devilish” was often unhelpful in sentencing remarks and suggested that the sentencer might have lost the sense of proportion essential to proper sentencing. The court observed that while strong, clear language was often appropriate and euphemisms unnecessary, such language crossed the line of what was appropriate and ought not to be used. Nevertheless, the court accepted that each individual offence fell into category 2A with a starting point of three years’ custody and a range extending to six years for a single offence. The judge’s task had been to assess the increase required over the starting point to reflect the number of offences, the impact on the vulnerable victim, and the duration of the offending. The court emphasised that cases of sexual abuse of children involving multiple incidents were sadly not uncommon, and that this factor should not be underestimated. The adverse consequences of years of abuse, creating a feeling of being trapped and dread of the next occasion, were obvious and serious, and the victim personal statement evidenced their existence in this case. The conduct had blighted a young life for years and its after-effects continued. While this was category 2 offending, the culpability was particularly high because of the grooming, the targeting of a vulnerable child known to have communication difficulties, and the breach of trust involved when Mr Byrne had been admitted into a small and protective family unit. All those factors taken together meant that a sentence much longer than the suggested starting point for a single offence was required. After the adjustment made under the slip rule, the court considered that the judge had arrived at a sentence that was proportionate to the offending and could not properly be described as manifestly excessive.
In short, the appeal against a seven-year sentence for twelve sexual offences against a vulnerable child over three years was dismissed, the Court of Appeal holding that despite inappropriate language in the sentencing remarks the sentence properly reflected the seriousness of repeated abuse involving grooming and breach of trust.
Mr Byrne had been convicted on 7 February 2019 at Derby Crown Court of twelve offences: six counts of sexual activity with a child contrary to section 9(1) of the Sexual Offences Act 2003 (counts 1, 2, 5, 6, 9 and 10) and six counts of causing or inciting a child to engage in sexual activity contrary to section 10(1) of the same Act (counts 3, 4, 7, 8, 11 and 12). On 13 February 2019 he was sentenced to a total of eight and a half years’ imprisonment, but the judge re-listed the matter on the following day and reduced the total term to seven years’ imprisonment, imposed concurrently on all counts.
The offences took place between approximately 6 August 2006 and 5 August 2009, when the victim was aged between 13 and 15 years. Mr Byrne had been a friend of the victim’s now-deceased grandparents and had known the boy from a very young age. The victim was a vulnerable child with autistic traits, communication difficulties and special educational needs. The offending involved Mr Byrne masturbating the victim and inciting him to masturbate Mr Byrne, with ejaculation occurring on occasions by both parties. The abuse took place repeatedly over the three-year period. In the course of persuading the victim to participate, Mr Byrne showed him pornographic material and shared alcohol with him, amounting to grooming and targeting of a vulnerable child. The victim reported the offending to police in 2015. Mr Byrne denied the allegations and was convicted after trial. A victim personal statement taken by the Achieving Best Evidence procedure in January 2017 showed that the victim remained fearful, expressing concern that Mr Byrne might find him through the internet. Mr Byrne had two very old convictions of a completely different nature.
The sentencing judge observed that Mr Byrne had said in evidence more than once that when the victim was 17 it was legal and there was nothing wrong with what he had done. The judge noted Mr Byrne’s age relative to the victim’s, the victim’s communication difficulties, and the lack of remorse. He found that Mr Byrne had committed the offences for his own sexual gratification. The judge treated as a serious aggravating feature the breach of trust involved, noting evidence that the victim’s grandparents had been so protective that they were very concerned about letting him out of the house, yet Mr Byrne had been admitted into this small and troubled family unit. The judge referred to grooming and the use of pornographic material, and described Mr Byrne as “morally corrupt, devilish and devoid of any kind of kindness” in his treatment of the victim. The judge correctly categorised the offences as falling within category 2A of the relevant guideline, with a starting point of three years’ custody and a range extending to six years for a single offence. He concluded that the aggravating features, together with the frequency and duration of the offending, required a substantial increase from the starting point. Having regard to the age difference and the victim’s vulnerability, he initially imposed eight and a half years but corrected this under the slip rule to seven years on the following day.
On appeal, Mr Bown on behalf of Mr Byrne submitted that the judge had overemphasised the aggravating features and that the characterisation of the appellant as “morally corrupt” or “devilish” was inappropriate given that the case was at the lower end of seriousness in terms of the character of the sexual activity itself. Counsel argued that the correct sentence should have been within the category range for a single offence.
The Court of Appeal, giving judgment through Mr Justice Edis, agreed that the word “devilish” was often unhelpful in sentencing remarks and suggested that the sentencer might have lost the sense of proportion essential to proper sentencing. The court observed that while strong, clear language was often appropriate and euphemisms unnecessary, such language crossed the line of what was appropriate and ought not to be used. Nevertheless, the court accepted that each individual offence fell into category 2A with a starting point of three years’ custody and a range extending to six years for a single offence. The judge’s task had been to assess the increase required over the starting point to reflect the number of offences, the impact on the vulnerable victim, and the duration of the offending. The court emphasised that cases of sexual abuse of children involving multiple incidents were sadly not uncommon, and that this factor should not be underestimated. The adverse consequences of years of abuse, creating a feeling of being trapped and dread of the next occasion, were obvious and serious, and the victim personal statement evidenced their existence in this case. The conduct had blighted a young life for years and its after-effects continued. While this was category 2 offending, the culpability was particularly high because of the grooming, the targeting of a vulnerable child known to have communication difficulties, and the breach of trust involved when Mr Byrne had been admitted into a small and protective family unit. All those factors taken together meant that a sentence much longer than the suggested starting point for a single offence was required. After the adjustment made under the slip rule, the court considered that the judge had arrived at a sentence that was proportionate to the offending and could not properly be described as manifestly excessive.
In short, the appeal against a seven-year sentence for twelve sexual offences against a vulnerable child over three years was dismissed, the Court of Appeal holding that despite inappropriate language in the sentencing remarks the sentence properly reflected the seriousness of repeated abuse involving grooming and breach of trust.
The appellant was convicted of six offences of sexual activity with a child and six of causing or inciting a child to engage in sexual activity. A total term of 8 years and 6 months’ imprisonment was imposed.
The appellant was friends with the victim’s grandparents and was a vulnerable child.
Held: the use of the word “devilish” is an unhelpful way to describe an offender in sentencing remarks and suggests the sentencer may have lost a sense of proportion. Euphemisms are unnecessary, and language of this kind crosses the line and should not be used.
Each of the individual offences fell into Category 2A; culpability was high. Those factors taken together mean a sentence was required that was much longer than the suggested starting point for a single offence. The sentence was proportionate to the offending and could not be described as manifestly excessive.
The appeal was dismissed.