Case Summary (Anonymised)

Factual and Procedural Background

Judge Dingemans delivered the written reasons for a hearing of a renewed application for leave to appeal against sentence following an earlier refusal by a single judge. Attorney Jones appeared pro bono for the Appellant.

The Appellant was aged 34 at the time of the opinion and was described as previously of good character. On 23 July 2023, on the second day of a Crown Court trial at the Crown Court in The City, the Appellant pleaded guilty to cruelty to a person under 16 contrary to section 1(1) of the Children and Young Persons Act 1933. The trial judge indicated that some credit for plea would be given at between 15% and 20% and in fact applied a 20% discount.

A separate trial on unrelated matters proceeded and resulted in acquittal on those matters. The trial judge observed material in that trial suggesting sexualised fantasies and that messages had been exchanged between the Appellant's Co-Defendant and others about sexual child abuse; that separate trial was stopped because the judge could not be sure the messages were not fantasies, although the judge returned to the question of those materials when assessing dangerousness on sentence.

On 5 September 2024 the Appellant was sentenced to an extended determinate sentence under section 279 of the Sentencing Act 2020 consisting of a custodial term of six years and an extended licence period of three years. No victim surcharge was ordered on the basis that the earliest date of offending was May 2011.

The Victim benefits from lifelong anonymity under the Sexual Offences (Amendment) Act 1992. The opinion records that, to protect the Victim's identity, it was necessary to anonymise the Appellant and limit factual detail; the court observed that this produced an "undeserved windfall of anonymity" for the Appellant.

Relevant factual background relied upon at sentence included that the Appellant and the Co-Defendant met as teenagers, the Victim was born when both were 17 and the Co-Defendant was the Victim's father. The Co-Defendant began sexually abusing the Victim when she was aged between 3 and 5, including digital penetration and oral sex, and thereafter the Victim was raped regularly; some offences occurred in the Appellant's presence. Police inquiries were prompted by internet posts by the Co-Defendant advertising sexual availability of a 22 year old woman and her 4 year old daughter. The Victim was temporarily placed with her grandmother during investigation but was returned to the Appellant under an agreement with Social Services that the Co-Defendant would not live in the household; that agreement was breached almost immediately and the Co-Defendant returned to continue abuse. Behavioural indicators (including sexualised behaviour and disclosures of self-harm by the Victim) and subsequent investigative material (including WhatsApp chats discovered in November 2022 and arrests in January 2023) informed the charge against the Appellant that she was aware of repeated rapes and assaults of the Victim on no less than five separate occasions and did nothing to protect the Victim. The Appellant made no admissions in interview.

Legal Issues Presented

1. Whether the custodial sentence of six years was manifestly excessive because the trial judge placed the offending in the wrong (and higher) category under the offence-specific guideline.
2. Whether the trial judge failed to make adequate adjustment for personal mitigation.
3. Whether the finding that the Appellant was "dangerous" was wrong because it relied in part on material (sexualised messages) attributable to the Appellant contained in an indictment on which the Appellant had been acquitted.

Arguments of the Parties

Appellant's Arguments

• The Appellant submitted that the six year custodial sentence was manifestly excessive because the offending had been placed in a higher category than was appropriate; Attorney Jones specifically highlighted that the trial judge had relied on material from the Victim personal statement (that the Appellant could stand up to the Co-Defendant on occasion) as part of the reasoning and that that formed only part of the picture.
• The Appellant argued that insufficient allowance had been made for personal mitigation (including age, age of the offending, mental health and history of domestic violence), such that the discount or adjustment for mitigation should have been greater.
• The Appellant contended that the dangerousness finding was unsafe because the judge had taken into account sexualised conversations attributed to the Appellant which featured in an indictment on which the Appellant had been acquitted.

The opinion does not contain a detailed account of any counter-arguments advanced by the respondent or prosecution in opposing the renewed application before the court.

Table of Precedents Cited

No precedents were cited in the provided opinion.

Court's Reasoning and Analysis

The court proceeded to consider each proposed ground in turn and set out its reasons for refusing the renewed application for leave to appeal.

On the categorisation of offending and alleged manifest excess: the court accepted the trial judge's application of the offence-specific guideline. The judge had applied the guideline, noted the maximum sentence at the material time was ten years (not the later increase to 14 years), and assessed culpability by reference to the factors presented. Although the judge described the offending in terms that included "multiple category B factors" (for example prolonged and/or multiple incidents of serious cruelty and neglect, deliberate disregard for the Victim's welfare and a failure to take steps to prevent further harm), and noted one lesser culpability D factor (that the Appellant was subject to domestic violence), the court concluded that the trial judge was entitled to place the offending in a high culpability bracket (described in the sentence reasoning as category 1A for harm). The appellate court emphasised that the trial judge, who had heard the trial material (albeit up to a submission of no case to answer in relation to the Appellant), was best placed to make assessments of credibility and culpability and that there was no failure in the judge's categorisation.

On mitigation: the court noted that there were numerous aggravating factors which pushed the appropriate sentence substantially higher within the guideline range. The trial judge had identified and taken account of personal mitigation (the Appellant's age, the age of the offending, mental health issues and exposure to domestic violence) and concluded that those factors balanced the aggravating circumstances. The appellate court treated that conclusion as a permissible evaluation of the competing factors and found that the trial judge was entitled to conclude that mitigation did not reduce the pre-discount sentence below the judge's chosen starting point (a pre-discount sentence of seven years and five months).

On dangerousness: the court first recorded that it is common ground that sentencing judges may take into account any information before them. Two complaints were identified and addressed. First, that insufficient weight was given to the passage of time since much offending dated back some years; the appellate court observed that the offending had continued over a long period and that passage of time did not preclude a finding of dangerousness in those circumstances. Second, that the trial judge had relied on sexualised messages attributed to the Appellant despite an acquittal in relation to other matters. The appellate court accepted the trial judge's handling of the material: it did not appear that the Appellant's responsibility for the messages was contested at sentencing, there had been no request for a Newton hearing to determine disputed facts for sentencing purposes, and the trial judge (who had presided in the related trial up to a submission of no case to answer) was well placed to assess the relevance and weight of the messages when deciding dangerousness. In light of all the circumstances, the appellate court concluded that the trial judge's assessment of dangerousness was not surprising or wrong.

Overall, the appellate court found no legal or procedural error sufficient to justify granting leave to appeal against sentence on any of the proposed grounds.

Holding and Implications

The renewed application for leave to appeal against sentence is refused.

Direct effect: the sentencing order of an extended determinate sentence under section 279 of the Sentencing Act 2020 — a custodial term of six years with an extended licence period of three years, and with a 20% reduction for plea applied to the judge's pre-discount term of seven years and five months — remains in force. No victim surcharge was ordered given the dating of the offending. The Victim retains statutory lifelong anonymity.

Broader implications: the opinion does not purport to establish any new legal principle or binding precedent; the decision reflects an appellate conclusion that the trial judge's factual assessments and discretionary sentencing decisions were within permissible bounds in the circumstances of this case.