Sexual harm

Adult dom and child sub: ‘Classic’ grooming?

Having initiated a Twitter search using the term ‘DDLG’ (‘Daddy Dom Little Girl’) a girl aged 15 had begun online communication with J. aged 55 who was aware of her age and claimed to be in his 40s. She had asked him whether he had a ‘sub’ (submissive) and told him that she had been a ‘little’ for around six months. Having initially presented himself as caring and protective, warning her to be very cautious of dominator ‘perverts’ who would exploit her, he won her confidence and she began sending him sexualised pictures of herself, sometimes involving the administration of pain, including a video of her penetrating herself and masturbating, filmed shortly before her 16th birthday when their continuing contact ceased to be criminal. As the Court of Appeal put it: ‘He instigated it, controlled it and placed [her] in the position where she thought it was the right thing to do, always for [his] sexual gratification.’ Noticing a concerning change in her behaviour and personality, her parents had discovered her secret activities, including sums that J. had sent to her bank account. He was duly traced.

Of previous good character J. had served in the Army with distinction for over 20 years, attaining a rank involving considerable responsibilities which he had undertaken in an exemplary way. Father of three children he had been acting as full-time carer for his wife who was confined to a wheelchair and unable to manage basic tasks since her stroke seven years previously. Their relationship had stagnated and had lacked ‘meaningful communication’, though they had regained their former closeness following his arrest. Now aged 58 he pleaded guilty to three child sexual abuse offences, the most serious being inciting a child to engage in sexual activity involving penetration. A PSR reported his denial that his offending was sexually motivated or that he had a sexual interest in children. He appeared not to recognise the girl as a victim and his insight into his offending was deemed limited. He was considered to pose a medium risk of serious harm to children.

On appeal against a total term of four years imprisonment, in tandem with a Sexual Harm Prevention Order (SHPO), it was argued on J.’s behalf that a starting point of six years before credit for plea had been too high and that the judge had treated his conduct as aggravated by ‘grooming’ the victim, a process which it was claimed must involve gaining the trust of the victim ‘so that what she or he previously considered unacceptable becomes acceptable’. The circumstances of his establishing a connection with her indicated that she already seemed familiar with sadomasochistic preferences. The Appeal Court disagreed, reminding itself that ‘grooming is not a term of art and may cover a wide range of behaviour’. J. had drawn his victim in, ‘in classic grooming style’ until she began to engage in sexual activity for him, culminating in the video. The offence thus fell within Category 1A of the relevant Guideline (2013) and the judge had been entitled to adopt that starting point. As regards whether insufficient account was taken of J.’s personal mitigation, the Court repeated the dictum that this factor does not carry much weight in cases of this nature. ‘No doubt the impact of the sentence will be disproportionately large on [J.’s] family, given his wife’s disability, but this is the risk which [he] ran with his eyes open when he engaged in this conduct.’ Though severe, the sentence had not been manifestly excessive.

R v JENKINS, [2020] 1 Cr App R(S) 25.

Step-daughter abuse: Sustained episode?

On various occasions when his partner’s daughter was aged seven to eight KC sexually assaulted her, including digital penetration of her vagina, while her mother was out and he had got her out of bed, ostensibly to watch TV with him. When she was aged 15 and still believed that he was her natural father, he became jealous of her relationship with a boyfriend and sent her a series of sexualised messages on Facebook, for example, asking her to send him a picture of herself naked and to let him have 30 minutes with her that she would ‘not regret’, upsetting her and prompting her disclosure of his previous abuse. On prosecution for assault by penetration of a child aged under 13 and inciting a child family member to engage in sexual activity, KC changed his pleas to guilty only after the trial had begun; her videoed interview had been played to the jury and he had received counsel’s advice on the likely sentence. He had indicated that he did not want to expose her to the ordeal of trial but did not accept that he had sexually assaulted her on as many occasions as was suggested by the prosecution. He claimed that at the time of the earlier molestation he and her mother had been using cocaine and amphetamine heavily, making their sexual appetites ‘uncontrollable’. They had organised an orgy and had participated in a ‘swingers’ club’, thus providing the context in which he had ‘stroked’ the victim sexually while watching porn. As he informed the PSR writer he had become ‘attracted virtually to everything and everybody without exception’.

On KC’s appeal against an extended sentence combining a 10 year six months custodial term with 12 months added liability to licence, it was argued on his behalf that the judge erred in treating the sentence for three counts of assault by penetration as Category 2 harm (starting point of 11 years’ custody with a range of seven to five years) under the relevant Guideline (2013) rather than Category 3 (starting point of six years’ custody with a range of four to nine years), on the basis of ‘sustained incident’ (in this instance not in relation to the individual period of any one assault but on the cumulative duration) and ‘child particularly vulnerable due to extreme youth and/or personal circumstances’.

Noting that an important distinction needs to be drawn between a single ‘sustained incident’ and a series of separate incidents, the Court of Appeal noted that ‘incident’ can refer to a single offence set in its surrounding circumstances or context but it can ‘also refer to a single episode of some duration within which more than one assault might take place’. The Court determined that KC’s three assaults had not amounted to a sustained incident. Though it can be relatively commonplace that intra-familial child sexual offending will span a period of time and involve multiple acts to the extent that the concept of ‘sustained incident’ will apply, the mere fact that over the period of years KC had remained in a position of trust towards the victim and she was sharing the same home with him was not sufficient, individually or collectively, to count as that within the Guideline. As to whether any single episode, apparently lasting somewhere between 10 minutes and 15 minutes, counted as ‘sustained’, the Court was reluctant to form a view since that had not been the basis upon which the judge had formed his view, though noting that the concept of a ‘sustained incident’ for the purposes of the Guideline ‘is clearly intended to be similar or analogous to a ‘prolonged detention’.

As regards the victim’s vulnerability, it was argued on KC’s behalf that though she was properly identifiable as ‘vulnerable’ when aged seven to eight there had been no evidence to suggest that she was ‘particularly’ so and that at that age ‘extreme youth’ no longer applied. Though the Court was persuaded that this was not a case counting as an instance of ‘extreme youth’, it observed that it is ‘not sensible to seek to construe the guidelines as if they were a statute. They cannot predict every permutation of circumstances that might arise and there must be a degree of elasticity in the terminology used’. Applying a degree of flexibility the victim at the stage she was could properly be considered ‘particularly vulnerable due to…personal circumstances’.

Finally, the Appeal Court considered that even though the judge had erred and even if the case fell ‘technically’ within Category 3, the combination of all the identified facts ‘would still have warranted in totality a sentence of the order imposed’. Even though, in respect of the incitement count, the victim had not succumbed and there had been no sexual activity, KC had plainly intended penetrative activity and had sought to exploit her vulnerability ‘that he had, by his earlier abuse, created in her’. The appeal was dismissed.

R v KC, [2020] 1 Cr App R(S) 41.

Repeat street molester: Factoring in mental health issues

Waiting for a late night bus in September 2018 a woman aged 22 was approached by Y., a man unknown to her, who sought to engage her in unwanted conversation, following her onto her bus and continuing to pester her for sex, alighting with her and following her home despite her obvious distress and resistance to his attentions. She considered him to be intoxicated. He forced his way inside and subjected her to an extended ordeal, raping her six times orally and vaginally, ejaculating without a condom, and finally asking for her mobile number so they could ‘do this again’. Aged 27, Y’s prior convictions included sexual assault (molesting a woman repeatedly at a bus stop, attracting a community order in 2016) and two further instances of sexual assault, molesting other women in the street at night, incurring 40 months in 2017. His current crime was committed while on licence and in breach of an SHPO imposed on the latter occasion, prohibiting him from communicating with any female who was not a family member or otherwise known to him through employment, education, or medical care, in public. The impact on the victim and her parents had been unsurprisingly severe.

On Y.’s conviction following jury trial, the judge received psychiatric evidence that he had a mental disorder comprising a relapsing and remitting psychotic illness (diagnosed as schizophrenia and a schizoaffective disorder), complicated by substance misuse (alcohol and cannabis), and generally by poor compliance with treatment and supervision. However, he had not been particularly psychotic at the time of the crime and his offending did not necessarily arise simply from his mental health problems. The judge deemed him to meet the statutory test for dangerousness without need of a PSR, concluding that he met the criteria for a hospital order with restriction under MHA 1983 ss37/41, but imposed instead an hybrid order under MHA 1983 s45A, amounting to 11 years imprisonment (including three years concurrent for SHPO breach) to be completed when he no longer required hospital detention.

On reference by the Attorney General on grounds of undue leniency, it was conceded that a hybrid order had been appropriate, given uncertainty regarding the connection between his offending and his mental health. However, it was contended that the judge had not had sufficient regard to the aggravating factors or to his finding of dangerousness, notwithstanding that Y.’s mental disorder afforded him some mitigation. The Court of Appeal agreed that this was a case of particular gravity with multiple features of harm such as to elevate the offending into Category 1B under the relevant Guideline (2013), thus indicating a starting point of 12 years and a range of 10–15 years. Given the additional aggravating factors, the absence of mitigation, save to a limited extent his mental disorder, and the danger he might well continue to pose even though he no longer required hospital treatment, an extended sentence should have been imposed in addition to the s45A order, combining a custodial term of 14 years, with an extended period of licence of five years.

ATTORNEY-GENERAL’s REFERENCE (R v YUEL), [2020] 1 Cr App R(S) 42.

SHPOs: Clumsy duplication

On conviction of possessing indecent images of children B. incurred an extended sentence (16-month custodial term with three years’ extended licence) and a sexual harm prevention order. Though he did not contest the making of an SHPO in principle, he challenged a term of the order prohibiting him for 10 years ‘from working paid or unpaid anywhere where there could be a child under 18 years of age on the premises’.

The Court of Appeal reminded itself that the prosecution must justify any restriction sought through a SHPO by demonstrating that the risk at stake is not already covered by the Safeguarding Vulnerable Groups Act 2006 (which barred B. from working with young and vulnerable people). Some restriction had been justified in this case but, applying the necessity and proportionality tests, the Court substituted a prohibition ‘from having any contact or communication of any kind with any child under the age of 16, other than such as is inadvertent and not reasonably avoidable in the course of lawful daily life or save with the informed consent of the parents or guardians of the child with knowledge of the defendant’s convictions’.

R v BEGG, [2020] 1 Cr App R(S) 30.