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SEXUAL OFFENCES: CHILDREN, WITH
R v J
2013 EWCA Crim 584 D was convicted of sexual activity with a child family member. V, aged 13,
was his stepdaughter. D and V’s mother had been in a relationship for about 10 years. V had regarded D
as her father from about the age of 2. D treated V as his daughter. D went into V’s room when V’s mother
was downstairs. He thought V was asleep and he penetrated her vagina with his finger. V reported the
incident at school the next day. D denied the offence and continued to do so. V’s mother accepted D’s
innocence. D was aged 56 and of good character. He had served in the army and since discharge had been
a hardworking man. He had favourable references and there were pleas of clemency from his family.
Held. This offence did not justify a sentence more severe than the recommended starting point of 5 years.
There was no blood relationship between D and V. 4 years
343.33 Seeking/Asking for sexual activity with children
R v Holmes
2013 EWCA Crim 577 D pleaded to inciting a child to engage in sexual activity. He was
‘house-sitting’ for his sister. V, a friend of D’s niece, was aged 10. She would come to the house to walk
the dog. V came to the house and came upon D lying on a bed exposing the lower half of his body. He
had an erection and when he saw her, he put a condom on his penis and asked her to get on top of him and
to have sex with him. V thought she was going to be raped, refused and left. He told her not to tell anyone
about. The offence only came to light some 4 years later when D went to the police and volunteered an
account of the offence. His account involved more serious offending than the reality, in that it involved
physical contact, but he sought to attribute some of the responsibility for the offence on to V. D, aged 39
at appeal, single and lived alone. He suffered from complex and systematised delusional beliefs. A second
report diagnosed paranoid schizophrenia. He had previously attempted to take his own life. D was of
previous good character. Held. Given the offence was not attributable to D’s mental condition, there was
no error in imposing immediate custody. This was an invitation to a sexual activity which was rebuffed
and not pursued. There was no contact. The nature of the offence, the manner in which it came to the
attention of the authorities and D’s mental condition justify the view that starting at 4 years was too long.
We agree with the Judge that the plea and the mental illness justify the starting point being halved. 15
not 2 years.
Note: I suspect with there being no physical contact between D and V, D’s good character and D volunteering the account that many Judges would consider a community order far more constructive in dealing with D’s problems than immediate imprisonment. Ed.
343.35 Sexual intercourse
Child aged 13-15
Defendant aged 18-24
R v McGowan
2013 EWCA Crim 867 D pleaded to sexual activity with a child (×2). J, aged 14, had been
pretending to be aged 18 on the Internet. She had created false Facebook profiles. J’s mother was aware
that J had been contacting older men and was concerned. A police officer spoke to J about her behaviour.
J told her mother she was staying with her grandmother but travelled to meet D. J never revealed her true
age to D however it was common ground that D could not have reasonably believed she was over the age
of 16 once he had met her. D and J spent the evening and all of the following day together. They had
consensual sex on two occasions in secluded areas of Manchester known to J. D had a small number of
convictions (community order imposed). D was aged 18 at the time of the offence and the Judge accepted
that he was immature. Held. Had D been aged under 18, the maximum sentence would have been 5 years,
not 14. The age gap between D and J was only 4 years. The starting point should have been 9 months.
With full credit, 6 months
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343.39 Sexual intercourse
Child family member Child 16+
R v B
2013 EWCA Crim 438 D was convicted of sexual activity with a child family member (x3). V,
aged 17, had left home after a dispute with her mother regarding the degree of freedom she was permitted.
D, who lived with his wife and daughter, had known V and her mother for 10 years or more and was said
to be a father figure to V. D and V were in the sitting room. D’s wife was in Ghana. D put some
pornography on the television and drank alcohol to disinhibit himself. He asked V to check that his
daughter was asleep. When V returned, he began stroking her arm. He made her sit on the sofa and pulled
her across so she was lying alongside him. He placed her hand on his penis and said that she could
masturbate him. He removed some of her clothes and licked her vagina. He left the room, put a condom
on, took a Viagra-type tablet and then had sexual intercourse with V. V waited until D was in another
room and left the house by getting out of a window. She told a number of people what had happened and
was in a state of distress. D said that V consented and had initiated the activity. V said the incident was
scary. She had become withdrawn and spent a great deal of time crying in her bedroom. She did not wish
to be intimate with anyone. D, aged 47, was of good character. He lost his job, marriage and home. He
displayed some remorse. The Judge noted that there was no affectionate relationship between D and V.
He said there was an element of planning, gross breach of trust and that V was vulnerable. Held. The
offending had a substantial impact upon V. The Judge was incorrect in his approach to the guidelines. V
was not a blood relative not the equivalent of one. The relationship between D and V and the breach of
trust is implicit in the offences themselves. There was a degree of preparation and planning. The licking
of V’s vagina and getting her to masturbate him were additional elements to the abuse. The aggravating
features justified a sentence above the starting point. 3 years
R v Davies
2013 EWCA Crim 3166 D pleaded to sexual activity with a child family member. In 2003 and
2004, D and his then partner, L fostered children. V was a foster child living in their home between
October 2003 and June 2004. V’s 16th birthday was in March 2004. Shortly before V left the foster home,
there were arguments between D, L and V, but no allegations of sexual impropriety were made against D.
In 2011, V contacted L. L and D had separated. V told L that D had raped her twice. L then confronted D,
who admitted that sexual intercourse had taken place between D and V on two or three occasions but only
because he was being blackmailed by V. D pleaded on the basis that V had instigated the events and that
intercourse occurred in the family home on two occasions. V was aged 16 and D was aged 43 when the
sexual intercourse occurred. D had no convictions and had testimonials. Held. After a trial, the
appropriate sentence would have been 2 years. With full credit, 16 months
not 2 years.
Defendant aged under 16
See also: R v K and Others
2013 EWCA Crim 649 (Pleas to sexual activity with a child and making
indecent photographs by four boys aged 14, 15, 15 and 16. Initially indicted with rape. Victim was a girl
aged 14 and very drunk. One boy called her over to a wooded area. He pulled down her trousers and
penetrated her vagina with his penis. Another penetrated her mouth with his penis. A third penetrated her
vagina with his penis whilst the first gripped her. A fourth boy, aged 16, filmed what happened on his
phone. The boys boasted after the event. None had convictions. Significant impact upon the victim. With
allowances for youth and the pleas, a 12-month DTO
was not in any way excessive.)
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