BTU, R. v

Factual and Procedural Background

The Appellant, a man in his mid-70s, was charged with a series of sexual offences against his adult daughter, referred to as the Victim. The initial indictment in October 2020 charged him with offences including incest under the Sexual Offences Act 1956, rape, and indecent assault, with the incest offences alleged to have occurred between 1989 and 1997. It later emerged that these incest offences actually took place in 2007, meaning they should have been charged under the Sexual Offences Act 2003. The Appellant pleaded guilty to the incest counts but denied the remaining charges, which were tried in 2023. The Appellant’s younger brother, also charged with offences against the same Victim when she was a child, was tried and convicted alongside the Appellant. Both were sentenced immediately after conviction in September 2023.

The Appellant was sentenced to a total of 27½ years’ imprisonment, comprising concurrent sentences of 23 years for rape counts, 18 months for indecent assault, and 4½ years consecutive for the incest offences. The brother was sentenced to 18 years with an extended licence period, reflecting his younger age at the time of offending.

After sentencing, an error was identified regarding the charging of the incest offences under the wrong statute. The parties agreed that the offences should have been charged under the Sexual Offences Act 2003, section 64, and the Court addressed this technical issue pursuant to the Criminal Appeal Act 1968.

Legal Issues Presented

1. Whether the Court could substitute guilty pleas to the correct offences under s.3A of the Criminal Appeal Act 1968, given the error in charging the incest offences.
2. Whether the sentences imposed on the Appellant for rape and indecent assault were appropriate, particularly whether the judge erred in categorising the psychological harm and in the length of the sentences.
3. Whether the totality principle was correctly applied in sentencing, including the relationship between sentences for rape, indecent assault, and the substituted offences of sex with an adult relative.

Arguments of the Parties

Appellant's Arguments

• The judge erred in placing the rape offences in category 1A for sentencing, contending that the severe psychological harm was not of an extreme nature and that category 2 was more appropriate.
• The sentences for rape were manifestly excessive, particularly the 23-year sentence exceeding the top of the guideline range of 19 years.
• The Appellant’s age and lack of previous convictions should have been given more weight as mitigating factors.
• Alcohol was not involved in all offences, and in some instances the Victim was drunk prior to the offences rather than being given alcohol by the Appellant to facilitate offending.
• The delay between the initial police interview and trial may have exacerbated the Victim’s psychological harm.

Respondent's Arguments

• The judge was correct to classify the rape offences as category 1, reflecting severe psychological harm of an extreme nature.
• The cumulative psychological harm caused by the Appellant’s offending, in combination with prior abuse by others, justified the categorisation.
• The serious suicide attempts by the Victim demonstrated enduring severe psychological harm attributable to the Appellant’s offences.
• The total sentence for rape was appropriate given the seriousness and aggravating factors, including abuse of trust and emotional manipulation.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
R v JM [2015] EWCA Crim 1638; [2016] 1 Cr App R (S) 21	Establishes that the timing of severe psychological harm (including suicide attempts) attributable to offending is immaterial for sentencing.	The Court relied on this precedent to affirm that the Victim’s suicide attempts, regardless of when they occurred, demonstrated severe psychological harm caused by the Appellant’s offences, justifying category 1 sentencing.

Court's Reasoning and Analysis

The Court began by addressing the technical error in charging the incest offences under the repealed 1956 Act rather than the 2003 Act. Applying s.3A of the Criminal Appeal Act 1968, the Court found the criteria met to substitute the pleas of guilty to the correct offences under s.64 of the 2003 Act without requiring re-arraignment. The Court accepted that the facts admitted by the Appellant supported guilt for the substituted offences and that the indictment could have been amended accordingly at trial.

Regarding sentencing, the Court carefully evaluated the level of psychological harm to the Victim, the nature of the offences, and the aggravating and mitigating factors. It accepted the trial judge’s assessment that the psychological harm was severe and of an extreme nature, placing the offences in category 1A under the Sentencing Council guidelines. The Court acknowledged the cumulative effect of abuse by the Appellant and others on the Victim’s psychological state, endorsing the principle from R v JM that the timing of harm is immaterial so long as it is caused by the offending.

However, the Court found that the total sentence of 23 years for the rape offences exceeded the appropriate range for category 1A offences and was manifestly excessive. It reasoned that although aggravated by the familial relationship and emotional manipulation, the offending did not amount to a campaign of rape warranting sentences above 20 years. The Court reduced the sentence to 19½ years for the two rape offences combined.

For the substituted offences of sex with an adult relative (s.64), the Court identified raised harm and culpability, categorising them as category 1 offences with a starting point of 12 months and a range up to 2 years. After credit for guilty pleas, the Court imposed concurrent sentences of 18 months, consecutive to the sentence for rape, mindful of totality principles.

Overall, the Court restructured the total sentence to 21 years’ imprisonment, quashing the original sentences for incest and rape and substituting appropriate concurrent and consecutive sentences consistent with sentencing guidelines and legal principles.

Holding and Implications

The Court GRANTED the extension of time and leave to appeal against conviction and sentence.

The Court SUBSTITUTED the Appellant’s guilty pleas for incest offences under the 1956 Act with pleas of guilty to the equivalent offences of sex with an adult relative under s.64 of the Sexual Offences Act 2003, pursuant to s.3A of the Criminal Appeal Act 1968.

The Court ALLOWED the appeal against sentence, quashing the original 23-year concurrent sentences for rape and substituting concurrent sentences of 19½ years. The 18-month concurrent sentence for indecent assault remained unchanged. The sentences for the substituted s.64 offences were set at 18 months concurrent to each other but consecutive to the other sentences, resulting in a total effective sentence of 21 years’ imprisonment.

No new precedent was established beyond the application of existing sentencing principles and statutory provisions for substitution of pleas. The decision clarifies the proper application of s.3A Criminal Appeal Act 1968 in cases of technical charging errors and affirms the sentencing approach to cumulative psychological harm in sexual offences involving vulnerable victims.