R v Luke Smith [2025] EWCA Crim 584

WARNING: reporting restrictions may apply to the contents transcribed in this document, particularly if the case concerned a sexual offence or involved a child. Reporting restrictions prohibit the publication of the applicable information to the public or any section of the public, in writing, in a broadcast or by means of the internet, including social media. Anyone who receives a copy of this transcript is responsible in law for making sure that applicable restrictions are not breached. A person who breaches a reporting restriction is liable to a fine and/or imprisonment. For guidance on whether reporting restrictions apply, and to what information, ask at the court office or take legal advice.This Transcript is Crown Copyright.  It may not be reproduced in whole or in part other than in accordance with relevant licence or with the express consent of the Authority.  All rights are reserved.[2025] EWCA Crim 584Venue Royal Courts of JusticeStrandLondonWC2A 2LLDate Thursday 3 April 2025
Before
LORD JUSTICE SINGHMR JUSTICE GOSSMR JUSTICE CHOUDHURY
Between
REXCrownV
Between
LUKE SMITH__________Computer Aided Transcript of Epiq Europe Ltd,Lower Ground, 46 Chancery Lane, London WC2A 1JETel No: 020 7404 1400; Email: rcj@epiqglobal.co.uk (Official Shorthand Writers to the Court)_________NON-COUNSEL APPLICATION_________JUDGMENT(Approved)
[1]On 19 August 2022, in the Crown Court at Portsmouth, the appellant (then aged 53) pleaded guilty to offences of intentionally encouraging or assisting the commission of an offence, contrary to section 44 of the Serious Crime Act 2007, those offences being: sexual assault (counts 1, 2, 4, 5, 8 and 9); rape (counts 3 and 6) and penetration (count 7) of a child under 13; causing or inciting a child to engage in sexual activity (count 12); and making indecent photographs of children (counts 13, 14, 15).[2]On 31 August 2022, HHJ Mousley KC (Honorary Recorder of Portsmouth) sentenced the appellant on those counts as follows: Counts 1, 2, 4, 5, 8 and 9 - 3 years 4 months’ imprisonment; Count 3 - 9 years; Count 6 - 8 years 4 months; Count 7 - 6 years 4 months; Count 12 - 2 years 8 months; Count 13 - 4 years 8 months; Count 14 - 2 years; Count 15 - 1 year. Counts 3, 6 and 12 were consecutive but all the others were concurrent. The total sentence was therefore an extended sentence of 25 years, comprising a custodial element of 20 years and an extended licence period of 5 years.[3]The facts giving rise to these sentences can be summarised briefly as follows. Between 20 October and 2 December 2019, the appellant, using the internet persona of a young female named “Becky” or a variation of that name, communicated with a man “AB” online. AB had a young son aged 20 months. The appellant instructed AB to commit various acts of sexual abuse on AB’s son. These included, in broad summary, placing AB’s erect penis onto the child’s bottom and ejaculating over the child (count 1); licking the child’s anus and sucking his testicles (count 2); inserting his penis into the child’s mouth (count 3); sucking the child’s penis (count 4); licking the child’s anus and touching his penis (count 5); ejaculating into the child’s mouth (count 6); digitally penetrating the child’s anus (count 7); licking the child’s testicles and rubbing his penis against the child’s anus (count 8) and ejaculating onto the child’s anus (count 9). All of these acts of sexual abuse were carried out whilst being live streamed to the appellant over Skype, with the appellant making encouraging and appreciative remarks throughout. The instructions included direction as to the type of abuse to be carried out, detailed instructions on where to place the telephone for the best position to record the abuse and how to adjust the lighting in the room. This activity only came to light when AB’s wife saw disturbing messages on AB’s phone which led her to report him to the police. AB was subsequently convicted under the United States Penal Code and sentenced to 30 years’ imprisonment.[4]Further inquiries of the appellant’s devices led to the discovery of other videos of young boys from around the world committing sexual acts at the appellant’s behest, once again through the persona of a young female. This led to the multiple-incident count 12. Counts 13, 14 and 15 reflected the numerous indecent moving and still images recovered.[5]The appellant appealed out of time against those sentences, saying that they were manifestly excessive, that there was a failure to take account of mitigation or the guilty plea and that the reports documenting his progress in changing his behaviours had been brushed over. In further correspondence sent to the court on 31 March 2025, the appellant contends that his sentence was “extremely harsh and disproportionate” and he highlights, amongst other matters, the fact that the offences were non-contact offences and that no violence was involved. He also complains that the pre-sentence report considered by the court and the addendum thereto were unprofessional, such that they ought not to have been taken into account.[6]The Single Judge granted limited leave to appeal in respect of a technical error which we consider below and refused leave in respect of the substantive grounds of appeal. The appellant now seeks to renew his application for leave before the Full Court.[7]In granting limited leave the Single

Judge said as follows:

“It is not properly arguable that the Judge made an error of law or principle in this complicated sentencing exercise. The Judge carefully considered each count in turn, explaining his application of the relevant guidelines to the circumstances of each offence, taking into account aggravating factors, personal mitigation and your guilty plea. Having considered the appropriate sentence for each offence if it were a determinate sentence, the Judge adjusted the terms to arrive at consecutive sentences on counts 3 (9 years), 6 (8 years, 4 months) and 12 (2 years, 8 months), a total of 20 years, together with concurrent sentences in respect of the remaining counts. The pre-sentence reports provided ample evidence for the Judge’s conclusion on dangerousness, entitling him to impose an extended sentence.”
[8]We agree with that conclusion. All of the matters which the appellant complains about were fully considered by the judge in deciding the appropriate length of sentence. The criticism made of the pre-sentence report and the addendum are without substance, but on any view, it is clear that the judge came to his own conclusions having regard to the pre-sentence report amongst other matters, including the psychiatric and psychological reports. The judge was entitled to conclude, as he did, that the appellant continued to present a significant risk of causing serious harm and that he was therefore dangerous. That conclusion is unassailable.[9]These offences against an infant and other young boys were of such depravity that a lengthy sentence of imprisonment was inevitable. The grounds of appeal and further correspondence with the Court reveal a concerning lack of insight on the appellant’s part notwithstanding the progress he appears to have made. We consider that the grounds of appeal against sentence are unarguable, and we refuse permission.[10]There are, however, a couple of technical errors in the sentence which need to be corrected. Time is extended to enable those errors to be considered. The first of these errors for which the Single Judge granted limited leave to appeal is that the judge erred by applying the extended sentence to the overall custodial sentence (a mixture of consecutive and concurrent sentences) without specifying the offences and the terms to which the extended sentence apply (see R v Francis [2014] EWCA Crim 631 and R v DJ [2015] EWCA Crim 563). It appears that the judge’s intention was to sentence the appellant to consecutive sentences on counts 3, 6 and 12, making a total custodial period of 20 years, with the remaining counts to run concurrently. Accordingly, we restructure the sentence as follows: Count 6 - the sentence is 8 years 4 months’ imprisonment; Count 12 - the sentence is 2 years 8 months’ consecutive and Count 3 - the sentence is 14 years extended sentence consecutive comprising a custodial element of 9 years and an extended licence period of 5 years. All other sentences remain the same and shall run concurrently. The end result is therefore the same, namely that the appellant is sentenced to a custodial term of 20 years and an extended licence period of 5 years.[11]The second technical error identified by the Registrar relates to the victim surcharge. The judge did not order a surcharge in this case; instead, this was added to the sentence administratively by the Crown Court. It has been held that a surcharge imposed in this way is unlawful (see R v Jones [2018] EWCA Crim 2094 at [15]). We therefore direct that the Crown Court record be corrected to remove the reference to the victim surcharge. To that limited extent this appeal is allowed. We direct that a copy of the judgment of the Full Court be provided to the appellant in custody. Epiq Europe Ltd hereby certify that the above is an accurate and complete record of the proceedings or part thereof. Lower Ground, 46 Chancery Lane, London WC2A 1JE Tel No: 020 7404 1400 12. Email: rcj@epiqglobal.co.uk