R v AIZ [2025] EWCA Crim 349

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[2025] EWCA Crim 349

Venue Royal Courts of Justice

Strand

London WC2A 2LL

Date Thursday, 13 March 2025

Before

LORD JUSTICE EDIS

MRS JUSTICE STACEY

HIS HONOUR JUDGE LOCKHART KC

(The Honorary Recorder of Coventry)

Between

REXCrown

Between

AIZ

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REPORTING RESTRICTIONS APPLY

Sexual Offences Act 1992

Contempt of Court Act, section 11

Computer-aided Transcript of Epiq Europe Ltd

Lower Ground, 46 Chancery Lane, London WC2A 1JE

Tel no 020 7404 1400, Email rcj@epiqglobal.co.uk (Official Shorthand Writers to the Court)

_________

Mr R. Tully KC and Mr R. Taylor appeared for Appellant.

for The Crown were not represented.

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JUDGMENT

[1]The provisions of the Sexual Offences (Amendment) Act 1992 apply to this offence. Under those provisions where an allegation has been made that 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 which is likely to lead members of 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.

[2]In this case the relationship between the appellant and the victim of his offences is such that this judgment must be anonymised in order for the protection provided by the Act not to be illusory. The appellant, therefore, shall be referred to as AIZ in this case and in the transcript when it is uploaded to the National Archives.

[3]This appeal concerns the difficult exercise of sentencing adults for sex offences committed when they were children. The appellant appeals with leave of the single judge. At the age of 31 he was sentenced in the Crown Court at Reading on 24 April 2024, to a total sentence of five years' imprisonment for seven offences committed against his stepsister (whom we shall refer to as "C") when he was between the ages of 11 to 15 years old. She was three and a-half years younger than him, aged between the ages of 8 and 12 at the time. He was convicted after trial of the three most serious offences: a single incident of oral rape of a child under the age of 13, contrary to section 5(1) of the Sexual Offences Act 2003 ("the Act"), for which he received a sentence of five years (count 1), and both a single and multiple-incident count of assault by digital penetration of a child under the age of 13, contrary to section 6(1) of the Act,(counts 3 and 4) committed over the same period, for which he received a four-year concurrent custodial term. He had previously pleaded guilty on re-arraignment to two counts of sexually assaulting a child under 13 in both single and multiple-incident counts of touching the complainant's chest and vagina, contrary to section 7(1) of the Act (counts 5 and 6), for which he received concurrent sentences of 18 months, and for two further counts of causing C, a child under the age of 13, to engage in sexual activity in both a single and a multiple-incident counts of masturbating the appellant's penis, contrary to section 8, and was sentenced to 21 months concurrent sentences for those two offences. The Facts

[4]As set out in the judge's very clear and well-crafted sentencing remarks, the appellant had persistently and seriously sexually abused his stepsister over a period of three and a half years. It began when she was at primary school aged eight and he was in secondary school aged 11 after he had moved in to live with his father and stepmother in 2003. It involved kissing and sexual touching all over her body, including her chest and vagina, over and under clothing. He digitally penetrated her on numerous occasions and made her touch his penis. It occurred three or four times a week. The incidents occurred in her bedroom, in his bedroom, in the family bathroom and in the lounge. The incidents in the bathroom occurred both on the bathroom floor when they were alone and also occurred in the bath when they bathed together with their younger half-sister where he hid his erection and activities under a Lego board which he held over his genitals area in the bath. There was also an incident which took place under a duvet when they were travelling to Cornwall in the back of the family car. On one occasion he forced his penis into her mouth and he ejaculated into her mouth. She described the assaults as “everything short of sex”.

[5]The complainant had never sought or agreed to any of the things he did to her. She only complied since she was particularly vulnerable because of her youth and family circumstances as his stepsister. The judge accepted that the offending started as teenage sexual experimentation but as time went on it became more about excitement and the potency that he gained from being able to coerce and control his young stepsister into tolerating the assaults and manipulating her into keeping them secret.

[6]The abuse came to an end in 2009 when they were 12 and 15 respectively when the complainant, increasingly resistant to the assaults, told him to stop and threatened to tell if he did not do so. When the appellant was 16 he moved out of his father and stepmother's house to return to Cornwall and live with his maternal grandparents to work for the family cleaning business. Although he had gone to build a new life and business, he regularly returned to stay with his father and stepmother in Wokingham and witnessed the complainant's deteriorating mental health and eating disorder. He would buy the complainant presents after she had told him to stop which she understood were intended to buy her silence.

[7]In 2012, when she was in year 11, in her GCSE year, the complainant informed the appellant that she would have to disclose to her parents what had happened for the sake of her own health. She messaged him that she wished him no ill but that keeping it all in was killing her. In response to her text, the appellant took an overdose, an act which the judge described as seizing the narrative, and stole C’s ability to tell her story. Having heard all the evidence, the judge said this about it:

"I have no doubt that this was a desperate act, but also a deliberate act on your part. It enabled you, the adult, to move on largely unscathed from what you had done, unlike [C], still a child, whose consequent disclosures to your parents came not in a measured way, controlled and assisted by her counselling, as she would have liked, but in the aftermath of your apparent suicide attempt, when she was being held to account for apparently selfishly not wanting to visit you in hospital. Then, of course, when your father, appraised by [C's] mother in very general terms of what you had done to her, finally confronted you, he did so gently, worried about your mental health."

The appellant quickly recovered from the single incident of self-harm, and, having done so, " ... showed [the complainant] not one ounce of compassion, understanding or empathy, but instead claimed it all for yourself in one night of pills and whisky, swiftly pumped from your stomach when you were discovered, as you knew you would be."

[8]The judge found that that enabled the appellant to control the narrative and took the complainant's victimhood away from her, making her even more powerless by adopting the role of the fragile. It was calculated, and it allowed the appellant back into the family fold and forced the complainant out of it.

[9]Many of the family members effectively took the appellant's side. The complainant felt unable to go on the planned extended-family holiday to Dubai in October 2012 because the appellant was also going, and so it was C who remained at home. During that period, she disclosed the fact of the abuse to a teacher and two close school friends but this did not result in criminal proceedings at that time. It did, however, impact severely on her academic performance and mock GCSEs.

[10]The appellant built his life in Cornwall and took over the family business, building it into a large and profitable company with employees ranging from 60 to 250 depending on the time of year as a seasonal business. It was a significant business operation. He also has a long-term partner and overall has built a successful life. He is described as a kind and compassionate man in the many personal statements written for the court prior to his sentencing hearing.

[11]In 2017 the complainant arranged to meet the appellant in Cornwall to discuss what he had done to her as a child. At that meeting he accepted what he had done and apologised to her in private, but he accused her of “having wanted it” and of being as much to blame as himself. He denied the apology in his evidence in court although some minimal admissions were made to his parents that it had been much less serious and consensual behaviour.

[12]The judge described the appellant's approach of pleading guilty somewhat late in the day to the minor matters he had previously admitted to family members as a minimisation strategy. He has always maintained that the acts were mutual and, even that some of them were initiated entirely by the complainant. The judge found that this was inaccurate and disingenuous, designed to undermine her and to minimise the possibility that she would have the confidence to disclose what had happened to her to the police. The judge described his strategy of presenting what had happened as mutually agreed childhood sexual experimentation, willingly entered into by both of them, as "a masterclass in minimisation and deflection", but, as the jury had found, it was no such thing. The judge found the appellant to be callous, lacking in empathy and taking no responsibility for what he had done or accepting any blame for the complainant's severe and enduring mental illness.

[13]In a moving victim personal statement, the complainant describes the three years of abuse, of lying awake in terror tormented by the uncertainty of the horrors that awaited her as she tried to go to sleep, with the daytime offering no refuge. She describes the demons, self-harm, eating disorders and time spent in mental health clinics that have dogged her throughout her teenage and adult life to date. The Sentence

[14]In her sentencing remarks, the judge first turned to the guidelines. She noted that she must assess the appellant under the Sentencing Children and Young People Guideline which she had looked at in conjunction with the Sentencing Council Guidelines for sentencing children and young persons for sexual offences. She noted that she must follow those guidelines unless it would be contrary to the interests of justice to do so. She reminded herself of R v Ahmed and Others

[2023] EWCA Crim 281

, most recently considered by the Court of Appeal in R v Rex and ATD [2023] Crim 1536. She followed the 2017 Sexual Offences - Sentencing Children and Young People Guideline (“the Guideline”) although that was not in force at the time since it adopts and expands that of its predecessor, incorporating guidance specific to sexual offending. Quite rightly, no criticism is made of that approach by the judge.

[15]The judge said that she must have regard to the maximum sentence available shortly after the offending in relation to the lead counts of 1, 3 and 4. These were grave crimes and so in the Crown Court the maximum sentence is the same as would apply to an adult offender. The judge, however, took as her starting point the likely sentence that would have been imposed shortly after the incidents occurred, i.e. when the appellant was aged about 15. The starting point, however, was not the end point since subsequent events, as she set out in detail in her observations, meant that in this case the appellant’s culpability was higher than would have been apparent at the time. She explained that the evidence established this was not an isolated lapse and it was not mere mutually entered into childhood experimentation. It was a sustained and predatory course of conduct which he pursued and progressed when the complainant was making it clear that she would not consent and did not want to engage in that way with him, and yet he continued to cause her to suppress what had happened when he was an adult, first concealing and then greatly minimising his offending.

[16]The judge noted that because the court is sentencing an adult, it must have regard to the purposes of sentencing, set out in section 57 of the Sentencing Code, and in each case the issue for the court to resolve is whether there is good reason to impose on the adult a sentence more severe than he would likely have received if he had been sentenced soon after the offence had taken place at the time. But she noted that before she could determine that issue she started by assessing his offending within the Guideline and followed the two-step test set out. Having regard to step 1, she was satisfied that a custodial sentence or a Youth Rehabilitation Order with intense surveillance and supervision would be applicable due to the penetrative activity and the use of coercion, exploitation or pressure together with the fact of the sustained period of time over which the abuse took place. She also considered it escalated in severity and caused severe psychological harm.

[17]Turning to step 2, she considered the offence was aggravated by a number of factors: grooming, disparity of age, persistence when it was clear it was unwanted and causing harm, the complainant's vulnerability within the family dynamic and, most significantly, the steps taken and maintained over a number of years as a fully functioning adult to prevent C from telling her story and seeking help. She also noted that his otherwise good character was his strongest mitigating factor aside from his age during the offending. She was satisfied that even at the time that the offending took place, and even bearing in mind that the detention of a child is a sentence of last resort, it warranted a custodial sentence when looking overall at culpability and harm, particularly with regard to the significant efforts to disempower and silence the complainant.

[18]The judge then turned to the adult guideline. She looked, firstly, at count 1, the rape of a child under the age of 13. She agreed with the Crown this was a category 2 harm offence because of the severe psychological harm and the particular vulnerability of C within the family dynamic. She also concluded that it was culpability 2A for the reasons that she had set out: the successful grooming of the child, the pressure on her to keep quiet about it and the three preceding years of sexual abuse in the context of the age of the young girl; she described it as sexual violence. She concluded that with a 13-year starting point for an adult, with a range of 11 to 17 years, bearing in mind the aggravation, for example the ejaculation into the complainant's mouth and that it happened in her home, it interrupted her education and the mental health crisis that she suffered, the aggravating features would result in a sentence of 15 years for an adult after trial. She then cut that sentence by two-thirds to reflect the appellant's age at the time, bearing in mind that it started when he was 12. She found, however, that the rape occurred when he was 15, thus increasing his culpability.

[19]Looking at the other sentences, she imposed concurrent sentences individually of slightly shorter terms, reached by a similar process. She considered that counts 3 and 4 would merit 12 years’ custody, reduced to four years for youth. Counts 5 and 6 would merit a sentence of six years if committed by an adult, which she reduced to two years for youth and then further reduced to 18 months to reflect his guilty plea. Counts 7 and 8 would merit seven years for an adult, which she reduced to 28 months for youth and further reduced to 21 months for guilty pleas. All sentences were made to run concurrently.

[20]The grounds of appeal are several-fold: firstly, the overall sentence of five years was in all the circumstances manifestly excessive; secondly it was said that the learned judge had failed to pay sufficient attention to the general principles of Ahmed when sentencing the defendant; that she had failed properly to apply the general principles set out in Ahmed to the facts of the case; thirdly that the judge was wrong to distinguish the facts of this case from those in the case of RW contained in the Ahmed judgment, alternatively, she was wrong to distinguish to the extent that she did; fourthly, the judge had failed sufficiently to adjust the starting points for her sentences to reflect the considerably reduced culpability of the defendant in respect of offending that occurred when he was a child; fifthly, that she had failed to apply a sufficient discount in respect of each offence as the reduction should have been of three-quarters, not two-thirds, to reflect the fact that the defendant was aged no more than 14 years during the majority of the offending period; finally, it was submitted that the finding of fact by the learned judge that the most serious offence (count 1 oral rape) must have occurred when the defendant was 15, and there was no proper evidential foundation for such conclusion and was based on speculation. Our analysis and conclusion

[21]As was apparent from the judge's remarks set out in some detail above , she identified the Sentencing Council Guidelines and the steps set out in Ahmed with meticulous care, and her general approach cannot be faulted. In spite of his powerful advocacy, Mr Tully KC was unable to identify a flaw in the structured approach taken by the judge in the sentencing exercise in accordance with Ahmed. Where Mr Tully parts company with the judge, is, firstly, in her assessment of the appellant's culpability to reach a notional sentence of 15 years for the most serious offence prior to applying a discount for the appellant's age at the time, and, secondly, the level of discount to be applied which he submitted should have been three-quarters and not two-thirds, to reflect his youth and mitigation.

[22]The judge was best placed to understand the facts of this case as the trial judge, having heard everyone give evidence. In her very careful remarks, she sets out her assessment of the appellant as having a high level of culpability, notwithstanding his young age. Although she does not use the word maturity in her sentencing remarks. This was at the forefront of her mind in her description of him being able to lead an independent life in Cornwall at the age of 16, growing up and quickly taking over his family's business and being viewed as a successful young entrepreneur by the family and taking on considerable responsibility. He had agency and control. She also carefully explained why she rejected the appellant's assertion that his behaviour was merely teenage sexual exploration and curiosity with a willing fellow participant.

[23]In doing so, she was not judging him as a 31-year old man who was to be sentenced but was able to see from subsequent events the true level of his culpability at the time as an 11 to 15-year old, which would not necessarily have been apparent at the time of the offending. The appellant's attempt at manipulation of the complainant in the years that followed enabled the judge to see how coercive and controlling his behaviour had been at the time. The passage of time also enabled the judge to have a much clearer picture of the extent of the damage and harm caused to the complainant by the appellant's behaviour. That is not the same as treating the appellant as an adult for crimes committed when he was a child.

[24]The facts of this case are somewhat dissimilar to the case of RW which are set out in Ahmed. RW began his sexual relationship with his sister when he was eight years old, before the age of criminal responsibility and the pattern of behaviour continued when he reached the age of criminal responsibility. When the sexual abuse began, RW was four years younger than the appellant in this case commenced abusing his stepsister. In RW the behaviour also finished when he was 14 whereas the appellant continued his offending behaviour until he was 15 years and three months. Unlike the appellant, RW fell to be sentenced for repeated offending on no fewer than three occasions. In this case the appellant was to be sentenced for continuous offending, happening regularly at least three or four times a week, week after week over a three and a half year period.

[25]The facts in RW are also a little different because he pleaded guilty to one offence of rape early on at a plea and trial preparation hearing and was re-arraigned on further counts which were acceptable to the prosecution shortly thereafter. His guilty pleas would have been reflected in the final sentence even though the level of discount is not recorded in the Court of Appeal's judgment. Significantly in this case, the appellant continued to deny the most serious of his offences. It is true to say, however, that like RW, like the appellant in this case, had worked hard and built up his own business, had good mitigation and plenty of statements in support. RW had the added mitigation of the tragedy of finding his mother's body at a very young age after her suicide. RW hadalso been exposed to pornography early on in his life. There are thus material differences between the appellant's case and the facts in RW.

[26]The appellant had impressive positive character testimonials and has clearly done very well with his cleaning company. He has no convictions, is a pillar of his community and is described as being compassionate and kind to those other than the complainant. The judge took note of that but good character carries less weight with this kind of offending and has to be weighed against steps taken by the appellant to diminish and undermine the complainant when she came forward with her disclosures and which continued throughout the trial.

[27]We turn finally to the criticism of the judge's finding that the appellant must have been 15 when the oral rape took place. The complainant's evidence in her ABE was that the escalation happened quickly with all forms of sex abuse described occurring from the beginning or close to it until the end of the period. The activities continued until the appellant was aged 15 years and three months which could be dated quite precisely by reference to a family holiday in Portugal. However the incidents appear to have tailed off somewhat as they both got older.

[28]In her Achieving Best Evidence ("ABE") video interview, the complainant describes the oral sex as happening throughout the period, but the jury found the appellant guilty of only one incident of oral rape and did not find him guilty of the multiple-incident count. In count 1, the single incident count, the offence was said to have occurred on a date between 26 October 2004 and 25 October 2009. The difficulty for the sentencing judge was that she had to decide which one of the many incidents described by the complainant, the jury had been sure had occurred and how old the complainant and appellant had been when it occurred in order to understand the correct level of culpability and harm. The judge asserted that the rape occurred when the appellant was 15, but the evidential basis for this finding of fact to the criminal standard is unclear. As Mr Tully KC observed, 93 per cent of the offending took place before the appellant’s 15th birthday and incidents appear to have tailed off somewhat towards the end, and the rationale for concluding that this particular offence occurred in the 7% has shaky foundations.

[29]We, therefore, accept Mr Tully's submissions that the appellant should have fallen to be sentenced on the basis that he was 14 at the time of the oral rape. If he had been only 14 at the time, his culpability would have been less and he should have received a considerably lesser sentence, with a correspondingly shorter term sentence for the less serious offences. Whilst the judge had meticulously followed Ahmed and the sentencing council guidelines, given that the court could not be sure that the oral rape commenced when he was 15, and given all the other circumstances and facts of this case set out above including the aggravating and the mitigating features we conclude that the sentence was manifestly excessive. We consider that the appropriate sentence for count 1 should have been a total sentence of three-and-a-half years immediate custody.

[30]We therefore grant the appeal. We quash the sentence of five years on count 1 and substitute it with a sentence of three years and six months. On counts 3 and 4, we quash the sentences of four years and substitute them with a sentence of three years to run concurrently to each other and to count 1 and the other sentences shall remain the same. To that extent the appeal is allowed.

[31]This case is an example of how indispensable Ahmed is in difficult cases of this type, which has simplified and provided clear steps for judges at both first instance and on appeal to sentence appropriately in the very difficult exercise where adults fall to be sentenced for sexual offences against children, committed when the offender was himself a child.

[32]Finally, we wish to record out thanks Mr Tully once again for his powerful and compelling submissions. __________ Epiq Europe Ltd hereby certify that the above is an accurate and complete record of the proceedings or part thereof. Lower Ground Floor, 46 Chancery Lane, London WC2A 1JE Tel No: 020 7404 1400 Email: rcj@epiqglobal.co.uk