DH, R. v

Factual and Procedural Background

This opinion concerns a reference under section 36 of the Criminal Justice Act 1988 by the Director of Public Prosecutions (DPP) regarding sentences imposed by His Honour Judge Kerr QC in November 2019 at Newry Crown Court. The Defendant was convicted of multiple sexual offences involving one complainant, including rape and indecent assault, as well as perverting the course of justice. The Defendant appealed the convictions on sexual offences, with the court allowing the appeal on two counts of rape. The sentencing included multiple concurrent prison terms totaling 15 years for rape counts, various shorter terms for indecent assaults depending on when committed, and two years for perverting the course of justice.

The complainant was the Defendant’s niece and alleged abuse starting at age 5 or 6, continuing until age 15, resulting in a pregnancy and birth of a child at age 16. The Defendant denied the allegations except for one incident which he claimed was consensual. DNA evidence established paternity of the child. The Defendant also attempted to induce the complainant to withdraw her complaint by offering money, leading to a conviction for perverting the course of justice.

The offences included numerous specific and specimen counts of indecent assault and rape occurring in various locations and circumstances over approximately ten years. The victim impact statements described significant trauma, shame, and long-term psychological effects on the complainant. The Defendant had a history of prior convictions unrelated to sexual offences and suffered from health issues. He denied responsibility for the majority of the offences and claimed the complainant was motivated by financial gain.

Legal Issues Presented

1. Whether the sentences imposed by the trial judge were unduly lenient within the meaning of section 36 of the Criminal Justice Act 1988.
2. The appropriate sentencing starting point and adjustments for aggravating and mitigating factors in a case involving a prolonged campaign of sexual abuse of a child.
3. The application of consecutive versus concurrent sentences, particularly regarding the offence of perverting the course of justice.
4. The extent to which the principle of double jeopardy affects sentence increases under section 36.

Arguments of the Parties

The opinion does not contain a detailed account of the parties' legal arguments.

Table of Precedents Cited

Court's Reasoning and Analysis

The court began by affirming the established legal framework governing unduly lenient sentences, emphasizing that only sentences outside the reasonable range of appropriateness warrant increase under section 36. It acknowledged the trial judge’s detailed consideration of the offences, including the prolonged duration of abuse, the victim’s vulnerability as a child, and the breach of trust by the Defendant as her uncle.

The court reviewed aggravating factors identified by the trial judge, including the grooming process, the numerous and repeated indecent assaults and rapes over a decade, the victim’s pregnancy resulting from the abuse, and the Defendant’s attempt to pervert justice by offering money to the victim to withdraw her complaint.

Relying on precedent, particularly R v Kubik, the court accepted a starting point of 15 years for the campaign of rape but found this insufficient given the additional aggravating factors. It noted the importance of avoiding double counting of factors already reflected in the starting point. The court concluded that an uplift to a 20-year starting point was appropriate.

The court also considered that no mitigating factors were present, rejecting the trial judge’s allowance of a one-year discount for previous good character as overly generous given the Defendant’s criminal history overlapping with the abuse period.

Regarding the perverting the course of justice offence, the court followed authority mandating consecutive sentences for such convictions, increasing the total effective sentence accordingly.

The court addressed the double jeopardy principle, confirming it did not preclude an appropriate increase in sentence for an offender still serving a substantial custodial term.

Holding and Implications

The court held that the original sentences imposed were unduly lenient. It increased the sentences on the rape counts to 20 years imprisonment to be served concurrently with other sexual offence sentences, substituted a concurrent sentence of 15 months imprisonment for an indecent assault count committed prior to October 1989, and imposed a consecutive sentence of 2 years for perverting the course of justice. The ancillary orders made by the trial judge remain in place.

The direct effect of this decision is to lengthen the Defendant’s custodial sentence to a total effective term of 22 years. The court did not establish new legal precedent but applied and clarified existing principles on sentencing severity, totality, and the treatment of perverting the course of justice offences. The ruling underscores the judiciary’s recognition of the gravity of prolonged child sexual abuse and the importance of appropriately reflecting aggravating factors in sentencing.