DEF, R. v

Factual and Procedural Background

The appellant, previously convicted of assault occasioning actual bodily harm after pleading guilty in the Magistrates' Court, was later convicted in the Crown Court of two counts of sexual assault of a child under 13 and one count of causing or inciting a child under 13 to engage in sexual activity. The appellant was the victim's father. The offences involved inappropriate touching when the victim was aged 5 or 6, and an attempt to incite oral penetration when the victim was aged 10 or 11. The victim disclosed the abuse to her mother at age 13 and reported it to the police a year later.

The appellant also assaulted a police officer during an arrest for suspected drink driving, causing actual bodily harm. He failed to attend court hearings on multiple occasions, leading to bench warrants and a charge of failure to surrender to bail.

Following conviction, the Crown Court sentenced the appellant to a total of 15 years and 3 months' imprisonment, combining sentences for the sexual offences, assault, and failure to surrender to bail. The appellant appealed against the sentence by leave of a single judge.

Legal Issues Presented

1. Whether the downward adjustment of two years on the starting point sentence for the offence of causing or inciting a child under 13 to engage in sexual activity was adequate, given the appellant's voluntary desistance from penetration.
2. Whether the upward adjustment of six years to reflect the overall seriousness of the appellant's sexual offending was proportionate and consistent with the principle of totality.
3. Whether the total sentence imposed was manifestly excessive.
4. Whether the victim surcharge was properly imposed in accordance with the relevant legislation based on the date of the earliest offence.

Arguments of the Parties

Appellant's Arguments

• The downward adjustment of two years on count 6 was insufficient to reflect the appellant's voluntary desistance from penetration.
• The upward adjustment of six years to reflect the seriousness of the overall sexual offending was disproportionate.
• The appellant's overall sentence was manifestly excessive as a result of these adjustments.

Table of Precedents Cited

No precedents were cited in the provided opinion.

Court's Reasoning and Analysis

The court recognized the seriousness of the appellant's offending and the severe psychological harm caused to the victim. It accepted the categorization of count 6 as a Category 2A offence with level A culpability, reflecting significant planning, grooming, and abuse of trust. The court noted that sentencing guidelines require a downward adjustment where intended sexual activity did not occur, and found that the Recorder had properly applied a downward adjustment for the appellant's voluntary desistance from penetration.

However, the court agreed with the appellant's counsel that the downward adjustment should have been greater. Additionally, the court found the upward adjustment of six years to reflect the overall seriousness of the sexual offending to be disproportionate and inconsistent with the principle of totality. The court concluded that the overall sentence was manifestly excessive on these grounds.

Regarding the victim surcharge, the court explained that the applicable legislation depends on the date of the earliest offence. Since the earliest offence was committed between 2011 and 2012, the surcharge applies only if a fine is imposed. As no fine was imposed, the surcharge order was incorrect and was quashed.

Holding and Implications

The court ALLOWED the appeal in part by quashing the 14-year sentence on count 6 and substituting an 11-year sentence. The sentences on counts 1 and 3 remain concurrent and unchanged. The sentences for assault and failure to surrender to bail remain consecutive, resulting in a total sentence of 12 years and 3 months.

The court also quashed the victim surcharge order of £156 as improperly imposed.

The decision directly affects the appellant's sentence and financial obligations but does not establish new legal precedent.