R v VDT [2025] EWCA Crim 1567

[2025] EWCA Crim 1567Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate Thursday 13 November 2025
Before
LORD JUSTICE STUART-SMITHMR JUSTICE MORRISMR JUSTICE CHOUDHURY
Between
REXCrownVDTDefendantREX
VDT
REFERENCE BY THE ATTORNEY GENERAL UNDER s.36 CRIMINAL JUSTICE ACT 1988
Mr D Bishop appeared for Solicitor GeneralMr A Semple appeared for Offender
The provisions of the Sexual Offences (Amendment) Act 1992 apply to these offences. Under those provisions, where a sexual offence has been committed against a person, no matter relating to that person shall during that person’s lifetime be included in any publication if it is likely to lead members of the public to identify that person as the victim of that offence
Approved judgment
[1]The provisions of the Sexual Offences (Amendment) Act 1992 apply to this offence. Under those provisions, where a sexual offence has been committed against a person, no matter relating to that person shall during that person's lifetime be included in any publication if it is likely to lead members of the public to identify that person as the victim of that offence. This prohibition applies unless waived or lifted in accordance with section 3 of the Act. For the avoidance of any doubt, we do not waive or lift the prohibition.[2]His Majesty's Solicitor General applies for leave to refer a sentence that she regards as unduly lenient. We give leave.[3]The sentence was imposed on 3 July 2025 in the Crown Court at Leeds, by HHJ Pema, after the offender had been convicted of nine counts of serious sexual offending against three victims (who we shall call "C1", "C2" and "C3"). Counts 1 to 3 of the indictment related to C1, counts 4 to 6 related to C2 and counts 7 to 9 related to C3. The aggregate sentence imposed by the judge was an extended sentence of 16 years, comprising a custodial term of 12 years' imprisonment, with an extended licence period of 4 years. Count 3 was treated as the lead offence for the purposes of sentencing.[4]In more detail, the sentence was structured as follows: i) On count 1, which was an offence of indecent assault contrary to section 14 of the Sexual Offences Act 1956, and related to a single incident of touching C1's breasts when she was aged 16, the sentence was 1 year imprisonment. ii) On count 2, which was a further offence of indecent assault contrary to section 14 of the Sexual Offences Act 1956, involving multiple incidents of touching C1's breasts when she was aged 16, the sentence was 1 year imprisonment concurrent. iii) On count 3, which was an offence of rape contrary to section 1 of the Sexual Offences Act 1956, which involved the vaginal rape of C1 when she was aged 16, the sentence was an extended sentence of 16 years comprising 12 years' imprisonment with 4 years extended licence period. iv) On count 4, which was an offence of inciting a child under 13 to engage in sexual activity contrary to section 8 of the Sexual Offences Act 2003, that being an offence involving exposing his penis and saying "show me yours" to C2 when she was aged 9 to 10, his sentence was 18 months' imprisonment concurrent. v) On count 5, which was an offence of exposure contrary to section 66 of the Sexual Offences Act 2003, involving multiple incidents of exposure to C2 when she was aged 9 to 10, the sentence was 6 months' imprisonment concurrent. vi) On count 6, which was a further count of inciting a child under 13 to engage in sexual activity, involving a single incident of inciting C2 who was then aged 9 to 10, to touch his penis, the sentence was 18 months' imprisonment concurrent. vii) Count 7, which was an offence of sexual communication with a child contrary to section 15A of the Sexual Offences Act 2003 involving C3 who was then aged 11 to 12, the sentence was 6 months' imprisonment concurrent. viii) Count 8, which was an offence of causing or inciting a child under 13 to engage in sexual activity contrary to section 8 of the Sexual Offences Act 2003, which involved asking if he could put his penis on C3's body when she was aged 11 to 12, the sentence was 18 months' imprisonment. ix) Finally, on count 9, which was a further offence of causing or inciting a child under 13 to engage in sexual activity, involving multiple incidents of asking if he could put his penis on C3's body when she was aged 11 to 12, the sentence was 18 months' imprisonment. By that route the total sentence was the extended sentence of 16 years pursuant to section 279 of the Sentencing Act, comprising a custodial term of 12 years' imprisonment with an extended licence period of 4 years. Ancillary orders were made, to which we do not refer, except to say that an order for a victim surcharge was directed by the judge which was inappropriate because the offending under counts 1 to 3 predated 1 October 2012.

The factual background

[5]C1 lived with her grandparents who were the parents of the offender. The offender and other members of the family were regular visitors to the home and would often visit for Sunday lunch. C1 would spend time on her own in her bedroom during these lunches. The offender would provide the excuse that he needed to use the toilet and would go upstairs to C1's bedroom where he would sit on the edge of her bed and put his hands inside her pyjama top and touch her breasts. C1 was scared and did not know what to do and so froze. The offender told C1 that no-one would believe her if she said anything and, if she did, it would split the family up and everyone would hate her. Count 1 reflected the first occasion that this happened, while count 2 reflected multiple other occasions of the same behaviour.[6]C1's grandfather became unwell with cancer. On an occasion where C1's grandparents went to hospital for her grandfather to receive treatment the offender attended C1's home in the knowledge that she would be alone. C1 was then aged 16 and the offender was then 43. The offender was under the influence of drugs. The offender vaginally raped C1 in the living room of the property. She described feeling scared and alone and like there was nothing she could do. The offender pulled her onto the sofa, laid her down and pulled her legs apart. She told him "no", "stop" but he ignored her pleas and carried on. C1 said that she thought "maybe this might be the end of it now if I just let him" and she froze. He penetrated her vagina with his penis. He was not wearing a condom and ejaculated inside her. After the rape, C1 sat in the shower and cried. The offence was reflected in count 3. The offender made efforts to ensure that C1 did not tell anyone about the rape by telling her about the devastating effect it would have on her grandparents.[7]As a consequence of the rape, C1 became pregnant with the offender's child. She carried the baby almost to full term but the baby died in the womb at about 8 months’ gestation. C1 had to deliver the deceased child. A postmortem was carried out during which samples of blood and tissue were collected from the child and preserved. A funeral for the child was held several weeks later at which C1 was asked to let the offender carry the coffin. As C1 had not told anyone about what the offender had done, she therefore felt that she had to agree and did so, which was highly distressing for her. As a result of medical complications following the pregnancy C1 has been unable to have any other children.[8]In 2011 to 2013 (8 years after the offences against C1) the offender committed the offences against C2. C2 is one of the offender's great niece's. She was then aged 9 to 10 years and the offender then aged 51 to 53 years. C2 and her mother would visit the offender's house. On one of those occasions the offender asked C2 to go and make him a cup of tea. He followed her, unbuttoned his trousers and exposed his penis to her and said "now show me yours" referring to her genitals (count 4). On other occasions when C2 visited the offender he would give her money and make sexualised comments. The offender exposed his penis to C2 on a number of those other occasions (count 5) and on one occasion when doing so, he told C2 to touch his exposed penis but she said "no" (count 6).[9]In 2018 to 2022, the offender committed the offences against C3. C3 is also one of the offender's great nieces. She was then aged 11 to 12 years and the offender was then aged 58 to 60 years. C3 was regularly taken to the offender's home and he was also trusted to drive her and other children to school. On other occasions he drove her alone after dropping another child off. The offender would engage in sexualised conversation with C3, telling her what it was like for women when they first have sex saying:
"It hurts at first and then it’s nice and they want it more and more"
. On another occasion, at a party at his house, he spat on the floor and said to C3:
"That's what male cum looks like"
. The conversation became more explicit and included comments such as: "You've got very big bellows for your age" (count 7).[10]On an occasion when C3 was staying at the offender's address, the offender asked C3 to let him put his penis on her. He said:
"It won’t hurt. I'd never do anything to hurt you"
. He had his hands down his pants at the time of doing so. Count 8 reflected a specific incident in the kitchen of the offender's house when this happened. Count 9 reflected multiple other occasions where the offender had asked C3 if he could put his penis on her.[11]The offences came to light in January 2021, when C3 and then C2 made disclosures about the offending to their mother, who in turn reported matters to the police. Having heard about the complaint made on behalf of C2 and C3, C1 made a report to the police about the abuse she had suffered the following day. On 30 January 2021, C3 gave her ABE interview to the police. C1 and C2 both gave their ABE interviews the following day.[12]On 31 January 2021, the offender was arrested and interviewed. He said the allegations were false and they may have stemmed from resentment arising from an argument at a family wedding some years earlier. He explained that he had not had any real sort of family relationship with C1 or C2 but said he had always got on with C3. He suggested that all three of the victims were lying or had been put up to lying about him by older members of the family as revenge for what had happened at the wedding. He denied having any sexual activity with C1.[13]In June 2021 the forensic samples taken from C1's stillborn child were retrieved and sent for DNA analysis. The tissue samples had degraded through age and only an incomplete DNA profile could be obtained. The DNA evidence obtained provided moderately strong scientific support for the proposition that the offender was the father of C1's child. In January 2022 the offender was further interviewed under caution in light of the scientific findings. On this occasion he answered all questions with the words "no comment".

The proceedings

[14]On 20 October 2022 the offender was charged with the offences by way of postal requisition. On 17 November 2022 the offender made his first appearance at West Yorkshire Magistrates' Court. He indicated not guilty pleas and the case went for trial to the Leeds Crown Court. The offender was admitted to conditional bail. On 15 December 2022, the case was listed for a plea and trial preparation hearing. The offender pleaded not guilty to the nine-count indictment. In February 2023, the offender provided a Defence Statement in which he denied the offences against each of C1, C2 and C3. However, he accepted that there was an occasion where he went to C1's home when his parents were not there, and that sexual activity between him and C1 occurred. He asserted that C1 had made sexual advances towards him. He tried to have vaginal sexual intercourse with her but did not penetrate her vagina. He said that he had ejaculated on her vagina and then stopped. Accordingly he asserted that all sexual activity was consensual.[15]On 5 May 2023 the pre-recorded cross-examination of C1, C2 and C3 took place at court pursuant to the provisions of section 28 of the Youth Justice and Criminal Evidence Act 1999. On 15 March 2024, an amended Defence Statement was served in which the offender asserted that no sexual activity took place between him and C1, and that the account he had given in his first Defence Statement had been given as a result of him "panicking" when he was informed that DNA evidence suggested he could be the father of the child. He had therefore "made up" his original account. He asserted that the only way he could be the father, which he did not admit, would be if he and the complainant had engaged in sexual intercourse at a time when he was so affected by drink or drugs that he now has no recollection of it.[16]The trial commenced on 17 March 2025 and the offender was convicted by the jury on 26 March 2025. The sentencing hearing was then adjourned for the preparation of a pre-sentence report.

Antecedents

[17]The offender was born on 21 April 1960 and was aged 65 at the date of sentence. He has five previous convictions for dishonesty in the late 1970s and early 1980s and an offence of assault occasioning actual bodily harm in 1994. He had no previous convictions for sexual offending. The judge said that while the offender was not of good character, his previous convictions did not aggravate the matter.[18]The judge had three victim impact statements from C1, C2 and C3. C1 said that the rape had taken her chances of motherhood since the trauma of losing her child and the medical conditions that it caused meant that she would never be able to have a child of her own. The offender had also taken her mental strength and she felt as if she were a zombie going through life on autopilot. She said that she was scared to leave the house alone. She said that thoughts of suicide had been on her mind from a very young age due to the rape and loss of her child. She said that the years following the rape had been in a "dark and scary place". She struggled to get out of bed most mornings. She dropped out of the last year of school. She became isolated from family and friends and she had suffered with depression and anxiety for the majority of her life. As a result of the assault, intimacy was difficult and it had put a strain on any relationship she had. She still suffered from vivid flashbacks and chronic panic attacks. She said she had lost the opportunity to become a happy, normal teenager, adult, wife or mother. She said that she had always blamed herself for what happened but she now knew it was not her fault and she would no longer be a victim.[19]C2 said that the offender had drastically impacted her life more as she had become older and realised that what had happened to her was wrong and should not have been able to happen. She said that she knew it was wrong at the time but did not want to admit her uncle was doing so wrong to her and saying disgusting things. It had taken her younger sibling C3 to admit what had happened to her before she could admit what had happened. She said that the offending had drastically impacted the relationships that she and her daughter had with men. She said that she never left her daughter alone with anyone because of what the offender did to her. It had also impacted the relationship she had with her daughter's dad, because she had lost total trust of nearly all the men in her life. She said that the offender had also affected how she saw herself and her own body image because she used to tell her that she needed to be really skinny to be desirable. She said that this had affected her later in life.[20]C3 said that no amount of writing could truly explain the damage the offender had caused. The offender was a family member and that she thought that she trusted but she had been taken advantage of. She said that she felt she had been robbed of a normal childhood. She said that the offender's words towards her had caused her to lose trust in every man she came across including her dad, her grandad and other male relatives. She said that she had been caused to have extreme anxiety and had self-harmed. She had received counselling. She said that there were countless nights when she had not slept because she had nightmares about what happened. She could not have sleepovers at friends’ houses because she would panic so much she would wet the bed. She said the offender’s words had emotionally damaged her and were a constant presence in her life, affecting how she viewed herself, her relationships and her ability to consider having a family of her own.

The pre-sentence report

[21]The offender maintains his denial of any wrongdoing and asserts that C1, C2 and C3 have lied. Prospects for constructive engagement are therefore very slight. The writer of the report assessed the risk of further seriously harmful offending to be high.

The sentencing hearing

[22]The judge went through the facts in considerable detail when categorising the offending. He had read the victim impact statements which he found and the offender's counsel agreed were "moving and compelling". He explained his intention to treat count 3 as the lead offence. He correctly summarised the proper approach to the sentencing of historic offences, remarking that the guidelines were not tramlines but that the court was obliged to follow them unless they are "wholly inappropriate" which is not the case here. He then addressed the various offences in turn starting with count 3. The judge said that the rape of C1 took place against the background of counts 1 and 2, which in turn involved not less than three occasions when he indecently assaulted C1. It was common ground that the maximum sentence for each indecent assault was 10 years. He categorised them as falling within category 2B, with a starting point of 1 year and a category range of up to 2 years. The offences were aggravated by the offender's relationship with C1, the opportunities he took and the fact that they would be the precursor to the offence of rape, with him testing the water to see if C1 would complain.[23]Turning specifically to count 3, the judge found that the offender knew that C1 would be alone in the house which showed a clear degree of planning. He identified the substantial age gap and the appalling consequences that flowed from the rape, concluding that "beyond any measure this is a severe psychological harm". Despite that, he held back from finding that it was harm of an extreme nature within the meaning of the guideline. He identified that pregnancy was one of the factors that made it a category 2 case and he treated the fact that she conceived and bore a child almost to term but who tragically could not have been born alive and safe as aggravating the offence. Yet he did not consider that these matters elevated the case to category 1.[24]Turning to culpability. He held that there was planning but not significant planning and that "abuse of trust" within the meaning of the guideline was not established. Hence he settled on culpability B which, if the offence of the rape were to be taken on its own, would indicate a starting point of 8 years and a range of 7 to 9 years.

The judge then turned to the aggravating features which he described as being:

"almost as many… as it is possible to find"
. C1 was vulnerable because her primary carer was having cancer treatment. There was a degree of grooming linking back to counts 1 and 2, and the offender took steps to prevent C1 from reporting his crimes. The judge rejected outright the offender's suggestion that C1 instigated the sexual activity and, on the offender's account, he was under the influence of drugs. On the other side, there was no significant mitigation. The judge then summarised the position that he had reached thus far:
"Before I come and sentence you in total... it seems to me I will say this, inevitably as a consequence, even of the rape and the two indecent assaults, that I would have been leaving the bracket at the top of the bracket seven and nine and above and I would have left that bracket, and looking as I had already indicated the next bracket up would have been, and I think it more appropriately would have been the starting point of 10 years which is the lowest starting point below it, and also 1B I note by the Crown’s assertion would in fact have had a category range of 10 to 15."
[26]Turning to the offending against C2, represented by counts 4 to 6, the judge treated the offences as a course of conduct which taken together fell within category 3B, with a starting point of 2 years and a range of 1 to 4 years. He accepted that there should be a downward adjustment because the suggested sexual conduct did not in fact take place. He regarded it as grooming to see whether things would be reported. As against that, the harm inflicted on C2 was significant. In addition, count 5 carried a maximum of 2 years.[27]Turning to the offending against C3, represented by counts 7 to 9, they were offences that occurred in the offender's car on the way to or from school, and to that extent represented a breach of trust. The judge regarded the conduct as a precursor to grooming. Count 7 was treated as falling into category 2B, with a starting point of 6 months and a range of up to 12 months. Counts 8 and 9 were category B3, with a starting point of 2 years and a range of 1 to 4 years.[28]Before stating the sentences that he was to impose the judge referred to the principle of totality. Having stated the sentences that he was going to impose he said:
"If I had proceeded to sentence you for each of the complainants separately, the sentences I would have imposed would have been higher on each of the sentences for each complainant and then would have been reduced for totality to reach a total of 12. And therefore, the sentence that I pass on count three reflects the offending overall but also reflects totality against all of the complainants."

The Solicitor General's submissions

[29]No issue is taken with the judge's decision to impose concurrent sentences, particularly in a case where he was going to make a finding of dangerousness. However, that decision meant that the sentence on count 3 had to reflect all of the offender's criminality in respect of all three victims. The Solicitor General submits that the judge failed to achieve that because he was wrong to hold that the offence of rape fell within category 2B. He should have held that it fell within category 1B because of the extreme nature or the extreme impact of the two identified category 2 factors, namely severe psychological harm and pregnancy as a consequence of the offence of rape. That failure was compounded by a failure adequately to reflect the totality of all the other offending and the presence of multiple aggravating features. Taken in combination and given the lack of substantial mitigation, there should have been a significant upwards adjustment to the notional sentence that would have been passed had count 3 stood on its own.

The offender's submissions

[30]Mr Semple has represented the offender before us as he did in the court below. He submits that the judge had the advantage of having presided over the 8-day trial and was best placed to assess all relevant parties for the purposes of a sentencing exercise that was by no means straightforward. While conceding that the combined effect of the offending against C2 and C3 could have led to an increase of more than the 2 years settled on by the judge, he submits the judge's categorisation was permissible and that the overall sentence passed was justifiable. With commendable realism he submits:
"The sentence passed was albeit only just within the range of reasonable sentences"
.

Discussion and resolution

[31]We are in no doubt that the combined nature and impact of C1's pregnancy, the loss of her child and the severe psychological harm suffered by C1 over many years since she was raped by the offender was so extreme that the offence should have been elevated to category 1B. The Solicitor General is correct to identify that the complications from the pregnancy and its consequences amounted to an extreme nature of the pregnancy which was sufficient on its own to elevate the harm into category 1. The Solicitor General is also right in the alternative to submit that there was an extreme impact on C1 by reason of the complication of the pregnancy and the severe psychological harm. As the Historical Sexual Offences Guideline identifies the passage of time has the potential to aggravate or mitigate the seriousness of an offence. In this case the harm caused by the offending has become apparent since the 22-year period since the offence was committed and was "extreme" within the meaning of the guideline. This is a case, as submitted by the Solicitor General, where the passage of time has served to clarify the profound and extreme impact of the offence. Accordingly, the correct starting point on count 3 alone was one of 12 years' custody with a category range from 10 to 15 years.[32]The Solicitor General is also correct to identify multiple aggravating features surrounding count 3. The offending against C1 took place in her own home. There had been an element of planning of the offence by waiting until her grandfather had gone to the hospital. The offender had made efforts to conceal his offending by telling C1 that it would have a devastating effect on her grandparents. There was a significant age gap between them. There had been grooming behaviour. C1 was a vulnerable victim and the offender was under the influence of drugs. We note in passing that the aggravating feature of persuading C1 to conceal what he had done is also an aggravating feature in paving the way for what he did subsequently to C2 and C3.[33]The aggravating features that are applicable to count 3 should exert significant upward pressure on the notional sentence and it should not be forgotten that provided double counting is avoided, the effect of counts 1 and 2 had to be reflected in the sentence on count 3.[34]In our judgment, leaving on the one side for the moment the offending against C2 and C3, the sentence on count 3 should have been not less than 13½ years. The offending against C2 and C3 was significant, even though it was relatively less serious than the offender's offending against C1. On totality grounds it is necessary to consider what additional weighting to the sentence on count 3 is required to reflect the offending against C2 and C3. No criticism is made of the concurrent sentences of 18 months that the judge imposed in respect of each victim nor could it be. We consider that the judge was entirely correct when he said in the passage we have cited above that, if he had been sentencing the offender for his offending against C2 and against C3 on a standalone basis, he would have imposed higher sentences on those counts. In the same vein, Mr Semple was correct to concede the combined starting points for the offending against C2 and C3 could have led to an increase of more than the further 2 years imposed by the judge.[35]Standing back and viewing the case as a whole, we consider that the least custodial sentence that could properly have been imposed on the offender, to reflect all of the offending against his three victims, was a sentence of 16½ years. It follows that the aggregate sentence imposed by the judge was not merely lenient but was also unduly lenient to the extent that this Court should intervene to increase the sentence on the offender.[36]For these reasons, we quash the sentence on count 3 and substitute an extended sentence of 20½ years comprising a custodial term of 16½ years with an extended licence period of 4 years. The total sentence will change to reflect that change. All other orders remain as before save that the order of the payment of the victim surcharge is quashed.