R v Keith Edun [2025] EWCA Crim 735

[2025] EWCA Crim 735Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 13 May 2025
Before
LORD JUSTICE STUART-SMITHMRS JUSTICE EADYMR JUSTICE CAVANAGH
Between
REXCrownKEITH EDUNDefendantREFERENCE BY THE ATTORNEY GENERAL UNDERS.36 OF THE CRIMINAL JUSTICE ACT 1988
REXKEITH EDUN
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.
Mr P Ratcliff appeared for Attorney GeneralMr S Animashaun appeared for Offender
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 Attorney General applies for permission to make a Reference to the court in respect of a sentence passed on the offender by Her Honour Judge Lowe sitting at the Crown Court at Croydon on 14 February 2025.[3]The offender was sentenced to an extended sentence of 21 years and six months' imprisonment, comprising a 13 year and six months' custodial term and an extended licence period of eight years. That aggregate sentence was made up as follows. On count 1, which was an offence of intentionally encouraging or assisting the commission of an offence, contrary to section 44 of the Serious Crime Act 2007, upon the offender's plea of guilty he was sentenced to three years and three months' imprisonment concurrent. On count 2, which was a second offence of intentionally encouraging or assisting the commission of an offence, contrary to section 44 of the 2007 Act, upon his plea of guilty he was sentenced to an extended determinate sentence of 21 years and six months. On count 3, which was an offence of making an indecent photograph of a child, contrary to section 1(1)(a) of the Protection of Children Act 1978, upon his plea of guilty he was sentenced to three months' imprisonment concurrent. On count 4, another offence of making an indecent photograph of a child, contrary to section 1(1)(a) of the Protection of Children Act 1978, on his plea of guilty he was sentenced to nine months' imprisonment concurrent. On count 5, an offence of distributing an indecent photograph of a child, contrary to section 1(1)(b) of the Protection of Children Act 1978, upon his plea of guilty he was sentenced to two years and three months' imprisonment concurrent. On count 6, which was an offence of doing an act tending or intended to pervert the course of public justice, contrary to common law, upon his plea of guilty he was sentenced to four years' imprisonment concurrent. Those individual sentences made up the aggregate sentence to which we have referred. There were other ancillary orders made, to which we do not need to refer in this judgment.[4]The Attorney General considers that the sentence imposed on count 2, which was treated as the lead offence, was unduly lenient. In briefest outline it is submitted that count 2 was mis-categorised so that too low a starting point was adopted for that offence and that the sentence failed adequately to reflect the seriousness of the offending represented by the other counts.[5]The offender, who was of previous good character, submits that the sentence was correct and justifiable. He was aged 43 at the time of his offending and is aged 48 now. We give leave. The facts[6]Previous investigations of the offender had indicated that he had a sexual interest in children and babies but had not resulted in any charges being brought against him.[7]Kik is a mobile messaging application. The defendant operated a Kik account in the name of Sallyoc1996 on his iPad. The account had been set up in January 2020. He used other messaging platforms with variations of the "Sally" username. The offender was part of a Kik group chat in which he expressed enthusiasm for the abuse of babies.[8]On 24 March 2020 the offender, using the name Sallyoc1996, engaged in an online conversation with another Kik user who called himself "Diablo_1987". Diablo_1987 was the username of a man whom we shall call "X". The evidence in this regard was obtained via the investigation into X, the offender having deleted data on his devices when his home address was searched on 9 September 2021.[9]Like the judge in the court below, we take the view that the seriousness of the offender's conduct can only be fully appreciated by providing a verbatim account of the messaging and a detailed description of the images that passed between the offender and X. We have therefore set out the relevant communications in full in an annex to this judgment. For present purposes it is sufficient to summarise the position as follows.[10]X told the offender that he had a young daughter who was two weeks old. The offender demanded that X prove that he was not lying, which X did by sending an image showing him pressing the tip of his finger against the nose of a young baby. The image also showed the sender's erect penis. After a few appreciative comments, the offender asked X if he had "pressed cock against her yet", to which X said he had, both against her mouth and vagina and anus. The offender then asked X to "do it now" in response to which X sent a 15 second video showing the oral rape of X's daughter while X masturbated. The baby shows clear signs of distress and attempting to avoid what is happening. The offender's reaction was that this was "nice" and to ask if X had "come on her yet". X replied that he had not yet but would get more adventurous when he had more time with her.[11]A little later, at the offender's request, X sent him another 14 second video showing an adult female abusing a six-week-old child. The offender responded by sending a 42 second video of an adult female licking the genitals and anus of a baby, who appears to be about eight to ten months old and who appears to be upset.[12]As the offender knew, the baby in the images sent by X was his daughter. She was two weeks old as of 24 March 2020. X was 33 years of age at that time. Eight days after the birth of his daughter, X began to sexually abuse her. Between 18 and 24 March 2020, X took 13 indecent images of his daughter and sent them to Kik users. One of those he was in communication with was an undercover officer and he was arrested in the early hours of 25 March 2020.[13]The videos taken by X included the second video file he sent to the offender. That video was recorded at 16.59 on 24 March 2020 and so whilst he was in communication with the offender and moments before the video was sent to the offender.[14]X was arrested and charged with and pleaded guilty at his plea and trial preparation hearing to 18 offences, including three offences of sexual assault of his daughter (the first committed 18 March 2020, the second on 24 March 2020 between 15.27 and 15.39 and the third on the same day between 15.45 and 16.59) and one offence of rape of his daughter, forcing his penis into the baby's mouth, at 15.18 on 24 March 2020. He was sentenced to an extended sentence of 24 years, comprising 18 years' imprisonment with an extended licence period of six years. As we have said, he had pleaded guilty to all offences at his plea and trial preparation hearing and those aggregate sentences imposed upon him would have taken those pleas of guilty into account.[15]Information gathered in that investigation also showed that the offender was an active participant in a Kik group chat involving a number of Kik users in which the sexual abuse of children was discussed and images and videos sought and changed. The offender sent messages such as "Need some baby screaming to wake everyone up" and "any young" and "younger the better". The exchange included graphic descriptions of the sadistic sexual behaviour that members of the group wished to inflict on a baby. Arrest and proceedings[16]At 6.30 on 9 September 2021 a search warrant was executed at the address of the offender that he shared with his parents. Body-worn video showed that the offender had his iPhone in his hands at 06.40. Subsequent investigation revealed that the offender had uninstalled the Kik application at 06.39. The effect of this was to delete all the evidence of the offenders' Kik communications on the device (save the screen shot taken at 04.30) and along with it opportunities to safeguard any children who were at risk of sexual abuse. That formed the basis for count 6.[17]Analysis of the offender's iPhone revealed 10 indecent photographs of children, Category C. That constituted the basis for count 3. Analysis of his iPad revealed an indecent photograph of a child in Category A. That formed the basis for count 4.[18]The offender was interviewed on 4 February 2022. He denied making or distributing any indecent images. He stated that the last time he had used the Kik application was a long time ago, which on the evidence we have was plainly untrue. He denied any knowledge of "Sally". He claimed that he believed his router had been hacked.[19]He was interviewed again on 7 November 2022. In this second interview he answered no comment to questions asked but provided a prepared statement in which he denied encouraging the rape of a child, distributing or making indecent images of children or setting up a KIK account in the name Sallyoc1996. He repeated his claim that his router may have been hacked.[20]He was arrested on 24 October 2023 and charged with the offences that form the subject of these proceedings. Analysis of the iPhone he held at that time showed that he had since his arrest in September 2021 continued to install and uninstall Kik. The proceedings[21]On 25 October 2023 the offender appeared before the Croydon Magistrates' Court. He entered pleas of not guilty and his case was sent to the Crown Court for trial. The offender entered pleas of not guilty at the plea and trial preparation hearing on 22 November 2023. The trial was fixed for 15 April 2024. On 5 April 2024 the offender served a defence statement in which he denied the attribution of the "Sally" online usernames and suggested that his digital devices had been shared and had been compromised. He denied deleting the Kik account from his iPhone when the warrant to search his premises was executed.[22]As a result of that, on 12 April 2024 the trial fixture was broken following a request on behalf of the offender on the basis that his expert's report was not ready. The trial was refixed for 23 September 2024. That date was also vacated and the trial refixed.[23]On 29 November 2024 the case was listed for trial in order that a jury could be sworn within the existing custody time limits. Before the jury were due to be sworn the offender offered pleas to all counts, save for count 2. The case was adjourned to 2 December 2024 in order that the pleas could be considered. Custody time limits were extended and the case was adjourned to Monday 2 December 2024.[24]On 2 December 2024 the case was listed for trial. The offender invited the judge to give an indication pursuant to Goodyear but the judge declined. The offender was re-arraigned and pleaded guilty to all six of the counts he faced. The judge ordered a pre-sentence report to assess dangerousness and sentence was adjourned to 14 January 2025. The sentencing hearing[25]The sentencing judge had a pre-sentence report. Although expressing remorse, the offender was at that stage minimising his culpability and giving implausible explanations for his behaviour. He was assessed as posing a high risk of serious harm to children and in particular female neonates, infants and pre-pubescent children.[26]Four character references, including one from a fellow prisoner who he had helped on an English course, spoke of him as helpful, gentle and caring and of these offences being out of character. A number of certificates evidenced that he had made constructive use of his time on remand. The offender had written a letter to the judge expressing his regret at what he described as "out of character decisions". We have read all of those materials and take them fully into account.[27]There were sentencing notes from the prosecution and the defence. Of most significance for this Reference is that the prosecution proposed that count 2 should be treated as falling within Category 2A. The prosecution submitted that it fell within harm Category 2 because of the extreme vulnerability of the victim. Applying the guideline for the substantive offence of rape of a child under 13, Category 2A would indicate a starting point of 13 years with a category range of 11 to 17 years. Count 1 was not an alternative to count 2, but the prosecution submitted that it might be considered to be part and parcel of the offending pleaded to in count 2. On what we have been told, we understand that counts 1 and 2 between them are intended to cover all the conduct which is the subject of the offending, with count 1 dealing with the offender's conduct up until the moment that he started suggesting that X should rape his daughter. Count 1, viewed on its own, was submitted to fall within Category 2A of the relevant guideline with a starting point of four years and a category range of three to seven years. It is not necessary to detail the prosecution's submissions about the other offences.[28]The defence contended that count 2 came within Category 2B, while accepting that it might be regarded as straddling Categories 2A and 2B. Similarly the defence contended that count 1 came within Category 2B but could be regarded as straddling Categories 2A and 2B. The sentencing remarks

The judge outlined her approach to the offences under section 44 as follows:

"My task, as you know, is to make a reference to that Sentencing Guideline but also to adjust depending on the factual circumstances of the case that I am dealing with; in other words, I need to reflect the fact that you were not, in fact, the rapist. You should appreciate though, that whilst you were not the rapist on this occasion but the encourager, it is the criminal conduct that you encouraged which is at the core of the sentencing exercise that I undertake. And in making the adjustments, I will make allowances for the fact that you did not physically commit the act of rape, and that the encouragement that you gave was incapsulated in not a single comment that your counsel has submitted, but several Kik messages. They were fairly direct messages though, and of course I understand that distinction is a matter of law between a conspiracy to rape, or acting as a secondary party to an allegation of rape, as opposed to an act which falls to be considered as a Section 44 Serious Crime Act offence. But I can tell you now that, on any view of this offending, it seems to me that you were not very far away from being as a matter of law, a secondary party to the rape; you are a co-conspirator of X."
[30]That approach is based on the decision of Hendron [2024] EWCA Crim 33 and is not criticised by either the Attorney General or the offender.[31]Having outlined the facts in detail, the judge held that counts 1 and 2 fell within Category 2A. Count 2 fell within Category 2 harm because of the extreme vulnerability of the baby and Category A culpability because X shared sexual images of his baby during the act and was guilty of abuse of trust as the offender well knew.[32]After addressing counts 3, 4 and 5 she turned to count 6 (perverting the course of justice). She held that the offence fell within Category 1A of the relevant guideline on the basis that the underlying offence was very serious and the offender’s conduct had a serious impact on the administration of justice. It was only by good fortune that the police separately secured the communications with X. The judge rejected the submission that the offence of perverting the course of justice was unplanned or unsophisticated. She found little mitigation in the offender's expression of remorse but took into account the fact that he had tried to help others and engaged in courses while in custody.[33]The judge found "without doubt" the offender to be dangerous. She noted the offender had expressed a clear desire to subject a baby to violent sexual abuse, rejecting as "far too simple" the submission that because his sexual interest had not manifested itself in "contact offences" he was not dangerous. She was clearly right in her assessment of dangerousness and no one suggests otherwise.[34]The judge afforded the offender 10 per cent credit for his late pleas of guilt and she stated that the sentence on count 2 would reflect the entirety of the offending and would be an extended sentence. Concurrent determinate sentences would be imposed on the other counts. It is accepted on all sides that that was an appropriate approach to adopt.[35]On count 2 the judge concluded that after trial the sentence, when taking account of all the aggravating and mitigating features, would have been 15 years. Allowing a reduction of 10 per cent credit for pleas, the sentence on count 2 was 13 years and six months' imprisonment. The custodial element of the sentence was extended by a licence period of eight years.

Applicable principles

[36]Part 2 of the Serious Crime Act 2007 created three inchoate offences. First, intentionally encouraging or assisting an offence (that being section 44). Second, encouraging or assisting an offence believing it to be committed (section 45) and third, encouraging or assisting offences believing one or more will be committed (section 36). For each offence the defendant must do an act that is capable of encouraging or assisting the commission of an offence or offences (for section 46) by another. It does not matter whether any "anticipated offence" was ever committed by another (see section 49(1)) although in this case it was. Nor does it matter whether anyone was in fact assisted or encouraged by the defendant's act. The offence can be committed where the defendant's conduct encouraged or assisted another person to persist in committing an ongoing offence that the person was already in the process of committing (that being section 47(8)). Pursuant to section 58(3) of the 2007 Act, on conviction for an offence contrary to section 44, 45 or 46, an offender is liable to any penalty for which he would be liable on conviction of the anticipated or referenced offence.[37]There are no separate sentencing guidelines for offences contrary to section 44 to 46 of the 2007 Act. It is however authoritatively established by Watling [2012] EWCA Crim 2894 that although the offences under the 2007 Act are themselves inchoate, it is highly relevant to consider the potential scale of the offences that the offender has encouraged or assisted. The sentencing judge was therefore correct to have close regard to the guidelines for the substantive offences that the offender encouraged, while at the same time recognising the slightly different nature of the offence under section 44, noting that the offender was not charged as a joint participant in the substantive offences.[38]For convenience we may refer in this judgment to the guidelines for the substantive offences indiscriminately as if they were also guidelines for the offences contrary to section 44 of the 2007 Act. We do so bearing in mind at all times what we have just said about the correct approach as established in Watling.[39]One other point of principle needs to be mentioned. One of the factors that may justify a finding of Category 2 harm under the guideline for the substantive offence of the rape of a child under 13 is that the "child is particularly vulnerable due to extreme youth and/or personal circumstances". In AZ [2022] EWCA Crim 620 where the victim of the rape was the appellant's two-year-old daughter, this court held that the case fell within Category 1 harm because of the extreme nature of the relevant Category 2 factor on account of the child's extreme youth. The Attorney General relies upon AZ in support of the submission that this case too fell within Category 1 harm to which we now turn.

The Attorney General's submissions

[40]While recognising that the prosecution submitted to the judge below that count 2 should be treated as a Category 2A case, the Attorney General now submits that the judge erred and that it should have been treated as a Category 1A case because of the age of the baby victim upon whom the rape was inflicted. The Attorney General submits that the fact that the victim was just two weeks old is a factor of such an extreme nature that it justifies placing the case in harm Category 1. If that is correct, it would mean that the starting point under the substantive guideline was 16 years, not 13, with a category range of 13 to 19 years. On that basis alone the sentence imposed by the judge, which was based on a starting point of 13 years, is submitted to be unduly lenient.[41]Second, while not criticising the individual sentences on counts 3 to 6 and accepting that count 1 may be regarded as being at least to some extent part and parcel of count 2, the Attorney General submits that inadequate adjustment has been made to reflect the criminality represented by the other counts. Particular emphasis is placed on the seriousness of count 6, which justified a standalone sentence of four years' imprisonment.

The offender's submissions

[42]The offender starts by noting that the Attorney General's position on Category 1 harm marks a departure from the position adopted by the prosecution before the sentencing judge. In the offender's submission the judge made appropriate findings as to categorisation and made appropriate reductions to reflect the fact that the section 44 offence was an inchoate offence and with regard to the principle of totality. In the result, the offender submits that the sentence imposed was correct in accordance with the evidence before the court which includes that the offender's encouragement did not cause the instigation of the substantive offence.

Discussion and resolution

[43]We are in no doubt that the rape in count 2 should be treated as falling within Category 1A. It is impossible to overstate the extreme nature of the victim's vulnerability at the age of just two weeks. We respectfully agree with and endorse the approach taken by another constitution of this court in AZ. Nor do we consider that this is a case where any significant reduction should be made to reflect the fact that the offender was not the rapist and was not physically present when the rape took place. He encouraged X to rape the baby, who he knew was X's two-week-old daughter, in real-time, as demonstrated both by his messages and the content of file 5d77.mp4. Accordingly the starting point for count 2 alone should have been in the region of 16 years. So extreme is the depravity of the offending that reference to the location of the offences as an aggravating feature seems to us to be almost superfluous. We treat the perverting of the course of justice by deleting the Kik app as a separate matter to be brought into account when considering the principle of totality and the proper reflection of the offender's overall criminality by adjusting the sentence imposed on count 2.[44]Applying the principles outlined in Hendron (supra) we endorse the sentencing judge's observation that the offender was not far from being a secondary party to the rape, with the consequence that only a minimal adjustment, if any, should be made for the fact that the offence under section 44 was inchoate. In our judgment the weight to be attached to counts 3 to 6 should lead to an upwards adjustment which is not even nearly cancelled out by the fact of count 2 being an inchoate offence.[45]In our judgment, an upward adjustment from a notional starting point of about 16 years to at least 18 years should be made to reflect the features we have identified above. In saying this, we make clear that a greater adjustment could be made without any risk of the resulting sentence being manifestly excessive. An adjustment up to 18 years should be regarded as the minimum adjustment that could reasonably be made, making all due allowance for the principle of totality. The application of a 10 per cent reduction for the offender's late plea of guilty is not controversial. Application of that reduction leads to a notional sentence of approximately 16 years and two months.[46]For these reasons we consider that the sentence imposed by the judge was unduly lenient. We have separately considered whether the scale of the adjustment that we might make justifies this court in interfering with the sentence imposed by the judge. Having regard to the nature of the offending and the two reasons that in our judgment lead to an unduly lenient sentence being passed, we consider that it does. We see nothing unfair in correcting the error of categorisation promoted by the prosecution in the court below.[47]We therefore quash the sentence on count 2 and substitute an extended sentence comprising 16 years and two months custodial term and eight years' extended licence, a total extended sentence of 24 years and two months. ANNEX The conversation between the two was as follows: X (16:38) Hi I have a young daughter Happy to show pics of you have something in return Offender Sorry not interested You lie X Nope not lying, can send a live pic of her to prove Offender Ok Sorry have to protect my family X What do you want to see Offender Ok get her to touch her nose with you standing next to her X She’s 2 weeks old she’s in her crib next to me right now Offender Ok you touch her nose in the crib X Sent: (File …3283.jpg): Image of a male pressing the tip of his finger against the nose of a young baby, wearing pink and cream coloured clothing who appears to be asleep. The male’s penis can be seen, fully erect. Offender Ok nice X U like? Offender Cute cock and baby X Thanks Offender Congrats First? X Yeh Offender Does mother know what you are into X No Offender Fair enough X She’s downstairs asleep Offender Have you pressed cock against her yet X Yeah Offender Mouth? X Yeh, and little pussy and arse Offender Would you do it now, interesting to see size difference X Hang on x Offender Ok [Face and heart ‘emoji’] X (17:00) Sent: (File: 5d77.mp4) 15 second video showing a young baby wearing pink and cream clothing who appears to be sleeping. An adult’s erect penis with a hand below the tip can be seen. The camera zooms into the side of the baby’s face. The adult’s penis is pushed into the baby’s face next to their nose / eye, and then pushed hard onto the baby’s mouth. The foreskin of the penis has been pulled back. The male’s hand pushes the foreskin to the top of the penis, masturbating whilst rubbing the tip of the penis into the mouth of the child. The penis is used to push the baby’s top lip back and bottom lip down. The baby’s face scrunches up, and the baby turns away from the male’s penis. The penis continues to be masturbated and is then placed on the face / mouth of the baby. Offender Nice So cute Bet she has a beautiful pussy You are lucky she’s a real cutie Have you cum on her yet? Take your time if you can’t chat now I can wait, just let me know when it ok X I haven’t cum on her yet, her mum hasn’t left the house yet, I’ll get more adventurous when I get more time with her Can I see u Offender I get that Sent: File (…7f14) Sorry if I’m not your type Thanks for sharing anyway X Live pic So I can see the real u, I don’t mind if it’s not face Cock, pussy, face I don’t mind Offender I can send naughty vids if you like Sent: File (…32cf.mp4) Category A Video [Count 5] 14 second video. An adult female exposes the vagina of a baby who is approximately 6 months’ old, and then uses her thumb to rub the baby’s vagina. The adult female then licks the baby’s vagina. Offender Let me know if you want more X Hmm that’s hot I’d love to see a quick live pic tho, just so I get an idea of who I’m sharing with Offender Sent: File (…f81a.mp4) Sent: File (…3477) Category A Video [Count 5] 42 second video. An adult female licks the genitals or anus of a baby who is approximately 8 to 10 months’ old. The baby appears to be upset. I have more if you like Offender (18:06) Hope you like Offender (18:45) Ok maybe I haven’t got what you want Offender (20:50) Busy? Offender (23:46) Gone?