R v Liam Davis [2025] EWCA Crim 916

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[2025] EWCA Crim 916

IN THE COURT OF APPEAL

Venue Royal Courts of Justice

Date Thursday 19 June 2025

Strand

London

WC2A 2LL

Before

LORD JUSTICE DINGEMANS

MRS JUSTICE THORNTON

HIS HONOUR JUDGE ST JOHN-STEVENS

Reference by the Attorney-General under s.36 Criminal Justice Act 1988

Between

REXCrown

Between

LIAM DAVIS

(The provisions of the Sexual Offences (Amendment) Act 1992 apply to this offence)

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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 WILL MARTIN appeared for Solicitor General

MR JOE HINGSTON appeared for Respondent Offender

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JUDGMENT

[1]This is the hearing of an application for leave to refer a sentence which His Majesty's Solicitor General considers to be unduly lenient.

[2]The respondent, Liam Davies, who was born on 25 June 1990, is now aged nearly 35 years old. He was convicted on 10 January 2025, after trial, of causing a child under 13 to engage in sexual activity. Mr Davis was sentenced on 25 March 2025 to 18 months' imprisonment suspended for 2 years with a 26-day programme activity requirement.

[3]The victim of these offences has the benefit of life-long anonymity pursuant to the provisions of the Sexual Offences (Amendment) Act 1992 and therefore the summary of the facts will necessarily be cryptic.

[4]Mr Martin, on behalf of the Solicitor General, submitted that: first, the judge put the offending into the wrong harm Category because the judge failed to recognise that the victim (a 3-year-old child) was extremely vulnerable due to extreme youth and/or personal circumstances. That would have made it a Category 2 and not a Category 3 offence; and secondly, the judge put the offending into the wrong culpability Category because the judge failed to recognise that there was grooming behaviour against the victim. That would have made it Category A and not Category B.

[5]Mr Hingston submitted on behalf of Mr Davis that: it was accepted that the judge had put the offending into the wrong harm Category, meaning that it was common ground that it was Category 2 and not Category 3 harm; but the judge was right not to find grooming, so that the judge had the right culpability factor. The sentence, given the earlier sentence to which I will turn, served by Mr Davis, meant that overall this was not an unduly lenient sentence.

[6]We are very grateful to Mr Martin and Mr Hingston for their helpful written and oral submissions, and we grant leave for the Reference in the circumstances where it is common ground that the judge had got the harm Category wrong. The other sentence

[7]So far as the other sentence was concerned, on 3 October 2016 at Bristol Crown Court Mr Davis had pleaded guilty to offences committed against another child who was 6 years old at the material time. This first offence was rape of a child, contrary to section 5 of the Sexual Offences Act 2003, and that occurred on 27 July 2016. The sentence was imprisonment for 8 years with an extended licence period of 1 year. Various consequential orders were made. The second offence was Sexual Assault of the same child under 13, contrary to section 7 of the Sexual Offences Act 2003, with the offending taking place between 1 and 30 June 2016, whereby Mr Davis had licked the child's vagina. He was sentenced to imprisonment for 3 years and 4 months consecutive.

[8]The third set of offences was making indecent photographs of children, contrary to section 1A of the Protection of Children Act 1978. This related to photographs and a moving image that Mr Davis had taken of him having sexual intercourse with the child. He was sentenced to 4 years' imprisonment for that, but that was made concurrent. That gave an overall sentence of 11 years 3 months, with an extension period of 1 year on the 8-year imprisonment count. The sentence was imposed in 2016, and Mr Davis was released on 4 April 2023.

[9]Mr Davis had made progress in prison and on licence. He had addressed the substance misuse which had caused some of his problems and his offending behaviour. He had found imprisonment very difficult and had made an unsuccessful attempt at suicide. Mr Davis is now in supportive accommodation and is making good use of support agencies, and we have had our attention drawn today to two letters showing the positive steps that Mr Davis has taken since his release from imprisonment.

[10]He was released on 4 April 2023, but in November 2022 the victim of this offending (then aged 10) disclosed that Mr Davis had sexually assaulted him by masturbating in front of him and then ejaculating into his hands. This had taken place when he was 3 years old. The police investigated. Mr Davis was charged on 9 February 2024. He pleaded not guilty on 25 March 2024, and he was tried and convicted in January 2025. The sentence

[11]The judge found that it was apparent that the offending had damaged the victim. School records showed that the victim, at about the time of the offending, had displayed sexualised behaviour to those he was at nursery school with. He had also suffered after the disclosure.

[12]The judge had categorised the offending as Category 3B. The judge did not address the issue of extreme youth. The judge said:

"I am not going to send you back to prison today. You did not help yourself when you entered a not guilty plea to the offence of which you were convicted. ... The reason, I believe, you could not face up to what you did this time was largely the terror which you would have suffered throughout your prison sentence and the humiliation and degradation to which you would have been subjected, but that humiliation and degradation is little compared to that which you meted out ... The fact that at the end of this reasoning you will receive a Suspended Sentence Order is a function of the fact that you have served a long sentence of imprisonment."

[13]The judge did not make any finding in relation to grooming. There was a submission made on behalf of the prosecution that this offending had taken place in abuse of trust, which the judge rightly rejected for reasons which, to avoid jigsaw identification of the victim, it is not necessary to repeat, and that was not a submission which was renewed before us. The guidelines

[14]The offence specific guidelines provide that: a Category 2A offence has a starting point of 8 years and a range of 5 to 10 years; a Category 2B offence has a starting point of 6 years and a range of 3 to 9 years (and it is common ground that this is at the least a Category 2B offence); and a Category 3B offence (which the judge had considered this offending to be) has a starting point of 2 years and a range of 1 to 4 years.

[15]There is a definitive guideline on Totality that provides that, where a court is dealing with sentencing an offender for offences committed before other offences for which the offender has already been sentenced, the approach is that:

"The court should first reach the appropriate sentence for the instant offences taking into account totality in respect of the instant offences alone. The court then has a discretion whether to make a further allowance to take into account the earlier sentence (whether or not that sentence has been served in full). The court should consider all the circumstances in deciding what, if any, impact the earlier sentence should have on the new sentence. It is not simply a matter of considering the overall sentence as though the previous court had been able to sentence all the offences and then deducting the earlier sentence from the figure."

[16]There is then set out a non-exhaustive list of circumstances, some of which are relevant to this court and some of which are not, and we will address those. It appears from the submissions this morning that those guidelines are at least based in part on what was said in Green v R

[2019] EWCA Crim 196

;

[2019] 2 Cr App R (S) 16

at [19] and [20]. Any combined sentence must remain just and proportionate. This Reference

[17]As to this Reference, it is now common ground that the judge was wrong to find this was a Category 3 case. It was a Category 2 harm because a 3-year-old child “is particularly vulnerable due to extreme youth”. It is apparent from all that was adduced at trial that the child was extremely vulnerable.

[18]As to the issue of whether there was grooming behaviour and whether this was culpability A or B, the evidence showed that Mr Davis had begun to take an interest in the children. The mother of the victim was asked how Mr Davis got on with the children and said, "He got on with them really well", and was asked whether he would play with them and said, "He would give them sweets, play YouTube. He would buy [another child] gifts. They did get on." This was the basis on which the Solicitor General invites us to find grooming behaviour.

[19]It is not apparent that Mr Davis was asked about grooming at trial, but obviously the issues at trial were different from the issue of sentencing. Most importantly, the trial judge did not make a finding one way or another in relation to grooming. That is partly because it appears the judge had decided what sentence would be imposed.

[20]We have looked at the material and the transcript. We can see that an inference might be drawn that there was grooming behaviour, but we are wholly unable to find that we are sure of that fact. For those reasons we consider that this should be categorised as a Category 2B offence; that is, with a starting point of 6 years and a range of 3 to 9 years.

[21]There was ejaculation in the course of the offending and that is an aggravating factor. There are other aggravating factors in the sense that there was the other offending which has already been mentioned.

[22]There was much mitigation that included: the fact that Mr Davis suffers from a medical condition which has caused him difficulty throughout his life; he had used his prison time before and after his release on licence to very good effect; and it is apparent that he has taken advantages of counselling to help with his mental health; and his conduct in the interim has been good.

[23]We turn to the relevant circumstances when considering the Totality guideline. It is apparent that there is a similarity of the offences sentenced earlier to the instant offence. There is a considerable overlap, in the sense that it is offending against children and sexual offending.

[24]We consider whether the sentences imposed earlier and instant offence overlapped in time. It is impossible to say but they were reasonably contemporaneous.

[25]Next we have to consider whether on a previous occasion the offender could have cleaned the slate by bringing the instant offences to the police's attention. That could have occurred before the first sentence had been imposed.

[26]The next matters are: whether taking the earlier sentences into account would give the offender an undeserved bonus, and whether the instant offence qualifies for a mandatory minimum. There is no issue in relation to these matters.

[27]The offender's age and health and whether their health has significantly deteriorated, does not seem to have been an issue, but it is right to record Mr Davis had a very bad time in prison.

[28]Finally, we need to consider whether if the earlier and instant sentences had been passed together as consecutive sentence, the overall sentence would have required downward adjustment to achieve a just and proportionate sentence. It would have done.

[29]It now being clear that this is a Category 2B offence with a 6-year starting point, we address, first of all, the submission made by Mr Hingston that this was at the bottom end of the category, meriting a lower position before considering aggravating and mitigating factors.

[30]We do not agree with that submission. This was offending against a 3-year-old child which caused really serious harm to that 3-year-old child who displayed sexualised behaviour to his peers. We consider that there were the aggravating features of the ejaculation and the previous offence. There were very important mitigating features, namely the progress in prison and the substantial efforts that had been made by Mr Davis to rehabilitate himself. We do not accept that that is destroyed by the fact that he did not plead guilty, but plainly he does not have the credit of a guilty plea. Doing the best we can, we consider that if this had been sentenced alone, this would have justified a sentence for this offending of 4 years.

[31]We then take into account the relevant features that have already been identified and consider whether if passed together, the overall sentence would have required downward adjustment to achieve a just and proportionate sentence. As indicated, it would have done. Doing the best we can, and having regard to all of the realities, in our judgment the lowest a court could have gone to take account of those features was to make a consecutive sentence, because there was a separate victim with separate harm, of 2-and-a-half years' imprisonment.

[32]So for all those reasons, we will allow the Reference, and we impose on Mr Davis a sentence of 2-and-a-half years' imprisonment. 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