Singh, R. v

Factual and Procedural Background

The Appellant was convicted in May 2022 on multiple counts including assault by penetration, assault occasioning actual bodily harm, and making a threat to kill, involving three separate complainants referred to as C1, C2, and C3, each granted lifelong anonymity under the Sexual Offences (Amendment) Act 1992. The Appellant was sentenced to an extended custodial term of 10 years with a 3-year extended licence on the lead count, alongside concurrent sentences for others. A statutory surcharge was imposed but later acknowledged as unlawful due to some offending predating the surcharge’s effective date.

The appeal, granted in June 2023, challenges the manifest excessiveness of the sentence, particularly in light of the Appellant’s gender dysphoria and mental health issues, which were argued to lessen culpability. The prosecution contended the sentence was proportionate, emphasizing the Appellant’s deliberate deception of the complainants for sexual purposes.

The Appellant, a 36-year-old transgender male born female, had a troubled upbringing involving abuse, multiple care placements, and mental health challenges. The appeal involved fresh expert psychological and psychiatric evidence concerning the Appellant’s gender dysphoria, mental disorders, and prison conditions, as well as witness statements relating to prison safety and treatment.

The offences involved the Appellant presenting as male and deceiving the complainants into sexual intimacy, including penetration with a strap-on dildo without their knowledge of the Appellant’s biological sex. The complainants described vulnerability and abusive dynamics in their relationships with the Appellant. The Appellant denied the assaults and alleged some sexual relations were consensual with knowledge of his biological sex.

The sentencing judge considered the circumstances of the offences, the Appellant’s previous convictions, the vulnerability of complainants, and aggravating and mitigating factors including mental health issues and prison difficulties. The judge found the Appellant dangerous and imposed the extended sentence on the lead count only.

Legal Issues Presented

1. Whether the fresh expert and witness evidence should be admitted on appeal.
2. Whether the Appellant’s culpability was reduced due to gender dysphoria, theory of mind deficits, or other mental disorders.
3. Whether the sentencing judge failed to properly reflect the impact of acquittals on certain counts.
4. Whether the sentence should have been further reduced to account for the Appellant’s mental disorders.
5. Whether the sentence should have been further reduced to account for difficulties faced by the Appellant in prison.
6. Whether the judge erred in finding complainant C1 particularly vulnerable due to personal circumstances.
7. Whether the judge erred in finding a significant degree of planning in relation to the offence against C1.
8. Whether the judge was wrong to find the Appellant dangerous.

Arguments of the Parties

Appellant's Arguments

• The Appellant’s gender dysphoria and mental health conditions reduced his culpability for the offences.
• The offence-specific sentencing guidelines did not anticipate the circumstances of a trans man not disclosing biological sex, warranting reduced sentences.
• The sentencing judge failed to properly consider the impact of acquittals on some counts.
• The sentence should be further reduced to reflect mental disorders and prison difficulties.
• Fresh expert evidence, including psychological and psychiatric reports, should be admitted to fairly assess culpability and sentencing.

Respondent's Arguments

• The Appellant deliberately deceived complainants for sexual purposes, justifying the sentence imposed.
• The sentence was proportionate and reflected the harm and culpability appropriately.
• The fresh evidence, while admissible, did not warrant a reduction in sentence as mental disorders did not sufficiently connect to offending behaviour.
• The judge correctly found the complainants’ vulnerabilities and the Appellant’s dangerousness.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
R v Walters [2017] EWCA Crim 2658	Reference for increased sentence upon Attorney General's reference.	Noted as part of the Appellant’s prior convictions and sentencing history.
R v McNally [2013] EWCA Crim 1051	Consideration of non-disclosure of biological sex in sexual offences.	Referred to by the Appellant; court noted it did not establish a point of principle affecting sentence.
R v Newland (Crown Court decision)	Similar factual circumstances regarding gender identity and sexual offences.	Referred to by the Appellant; court found no binding principle affecting sentencing.
R v Leitch and others [2024] EWCA Crim 563	Principle regarding administrative imposition of extended sentences without pronouncement.	Applied to confirm that extended sentences were only effective on the lead count where pronounced.

Court's Reasoning and Analysis

The court first considered the admissibility of fresh evidence under section 23 of the Criminal Appeal Act 1968, finding the expert and witness evidence credible, relevant to sentencing, and sufficiently explained regarding its late submission. The court admitted all fresh evidence to ensure a fair determination of the appeal.

Regarding culpability, the court accepted the Appellant had gender dysphoria and personality disorders but found no sufficient causal connection between these conditions and the offending behaviour to reduce culpability. The court rejected the theory of mind deficits or mind blindness as a mitigating factor, emphasizing the Appellant’s active deception of complainants, including deliberate fabrications and pretence during assaults.

The court found no need to conclusively determine the presence of ADHD or ASD, noting disputes among experts and insufficient evidence supporting these diagnoses to affect culpability.

The court upheld the sentencing judge’s factual findings on complainant vulnerability and planning, acknowledging the judge’s superior position to assess evidence and witness demeanour. It also found the judge’s determination of the Appellant’s dangerousness justified based on the nature and pattern of offending and ongoing difficulties in custody.

The court noted that the judge had properly considered mental health and prison difficulties as mitigating factors but found no basis for further reduction of sentence. The court dismissed arguments that the judge failed to reflect the impact of acquittals, explaining that continuation of consensual sexual relations after offending does not diminish the harm or culpability of the initial offences.

Holding and Implications

The court ALLOWED THE APPEAL IN PART to the extent of quashing the unlawful statutory surcharge imposed at sentencing. In all other respects, the appeal against sentence was DISMISSED.

This decision confirms the appropriateness of the original sentence imposed on the lead count and concurrent sentences, affirming that gender dysphoria and personality disorders, without a sufficient causal link to offending behaviour, do not reduce culpability in sexual offences involving deception. The ruling underscores the court’s deference to sentencing judges’ findings on vulnerability, planning, and dangerousness where supported by evidence. No new legal principles were established beyond the application of established sentencing guidelines and evidentiary standards.