DJ, R v

Bad-character evidence may be admitted under section 101(1)(d) of the 2003 Act where it is capable of showing a propensity that is highly relevant to whether allegations of sexual abuse were fabricated. Careful limitation of the evidence and an adequate jury direction may prevent unfair prejudice.

In sentencing multiple serious offences against different victims, consecutive terms may reflect the separate harm. The court must nevertheless stand back and apply totality and proportionality to the aggregate term. Consecutive extended determinate sentences must identify the offences to which they attach; it is the extended sentences, rather than only their custodial terms, which must run consecutively.

The appellant was convicted after two trials and pleaded guilty to numerous further sexual offences against nine girls, committed over a prolonged period. The offences included repeated rape of children, sexual activity with children, grooming, indecent images, and sexual assault.

At Guildford Crown Court on 11 February 2014, he received an extended sentence of 39 years, comprising 33 years’ custody and a six-year extension period. He renewed an application for leave to appeal against convictions relating to his daughter, challenging the admission of bad-character evidence. With the single judge’s leave, he also appealed his sentence as manifestly excessive for want of sufficient totality.

1. The court refused renewed leave to appeal against conviction. The challenged material was capable of demonstrating an interest and propensity to abuse children of very young ages. That was highly relevant where the appellant alleged that his daughter’s account was fabricated. The jury did not see the videos. They received only neutral descriptions, and the trial judge gave an adequate direction to put aside emotional reactions. The admission of the evidence under section 101(1)(d) of the 2003 Act did not render the convictions unsafe.

2. The court allowed the sentence appeal in part. Separate consecutive sentences could properly reflect the offending against different victims. However, totality required an overall assessment of proportionality. Comparisons with R v P(P) [2009] EWCA Crim 1048, R v Watkins [2014] EWCA Crim 1677 and Coleman, in R v Burinskas & Ors [2014] EWCA Crim 334, showed that sentencing labels were not determinative. The facts had to be assessed carefully.

3. The offending was exceptionally grave and involved many aggravating features, but the 33-year custodial term was too long overall. The violence was not of the order present in some comparator cases, and there was no sadism, pregnancy or sexually transmitted disease. The custodial term was reduced to 30 years, by reducing the 17-year sentences on indictment 7113 to 14 years.

4. The original global extension period was technically defective. Although consecutive extended determinate sentences under section 226A of the 2003 Act were lawful, the court had to identify the offences to which each extension attached, following R v Pinnell and Joyce [2010] EWCA Crim 2848 and R v Francis and Lawrence [2014] EWCA Crim 631. The court imposed three consecutive two-year extension periods. The resulting extended sentence was 36 years, comprising 30 years’ custody and a six-year extension period. The victim surcharge order was quashed as unlawful.

• Court of Appeal (Criminal Division) Refused renewed leave to appeal against conviction. Allowed the sentence appeal to the extent of reducing the custodial term from 33 to 30 years, regularising the extended sentence, and quashing the victim surcharge.
• Crown Court at Guildford On 11 February 2014, imposed an extended sentence of 39 years, comprising 33 years’ custody and a six-year extension period, following guilty pleas and convictions at two trials.