[2025] EWCA Crim 1042

Two grounds of appeal against sentence were raised; first, that the 20 year custodial element of the sentence was manifestly excessive, and secondly that the judge was wrong to find the appellant a dangerous offender. Logically the issue of dangerousness arises first, as Mr Rosser accepted when we put this to him in the course of his oral submissions. That is because the judge could not have passed an extended sentence without such a finding.

The judge had the advantage, which this court does not have, of seeing and hearing all the evidence at trial, including the evidence given by the appellant himself. He had heard C read out her victim personal statement. He also had a pre-sentence report, which we have read, which was based on an hour’s interview conducted with the appellant by video link. The author of the report assessed the risk of a further contact sexual offence as medium, but said that the appellant posed a high risk of causing serious harm to children and to intimate partners. Of the risk factors relevant to sexual offending behaviour, he considered there was evidence of callousness and hostility towards women. He indicated that there appeared to be a lack of insight, and said it had “proven challenging to identify evidence of notable protective factors against reconviction in the future.”

Although the author of the report expressed the view that he did not consider that the appellant met the criteria for an assessment of dangerousness, the sole explanation he gave for that was that the risk of reoffending was medium. We agree with Mr Gledhill that, although he sets out the legal test correctly, the author does appear to have conflated the risk of reconviction with the risk of causing serious harm by the commission of further specified offences.

The judge clearly applied the correct legal test under what is now section 308 of the Sentencing Act 2022, namely, does the defendant pose a significant risk to members of the public of serious harm occasioned by the commission of further specified offences? He concluded that he did, based upon the reality of the life which the victim was living (with the appellant), which he had heard about in detail during the trial. That must have been a reference to the control which the appellant was exerting over every aspect of her day to day living for at least five years, in consequence of the lengthy grooming campaign. Looking to the future the judge said that: “then [i.e. on his release] he may be older but that doesn’t mean he can’t use the same technique again.” He observed that words did not seem to trouble the appellant, they seemed to flow very easily and from on high, and that he knew and still knows how to spot an easy target.

The judge also expressed concern that the appellant had told the author of the pre-sentence report that he intended to engage in some kind of work as a paramedic or emergency medical carer on a self-employed basis on his release (the appellant presumably being aware that no agency would ever allow him to be employed in that kind of role, and that court orders would ensure that he would not be permitted to work with children). Whilst it may be wholly unrealistic to suppose that when he is released from custody, at the age of around 75, the appellant would succeed in that aspiration, it is a matter of concern that he might attempt to use self-employment as a means of getting round any court-imposed restrictions on the kind of work he might do.

In his oral submissions Mr Rosser concentrated on two matters in particular, namely the weight placed by the judge on the index offences, and the judge’s treatment of the pre-sentence report. As to the latter, a judge is not bound by the views expressed by a probation officer on the question of dangerousness and is entitled to evaluate how much weight he or she can place upon a report of this nature. Without intending any disrespect to its author, the judge was entitled to find the report in this case less helpful than it might have been. The judge was troubled, in particular, by a sentence in which the author said “I have no evidence to indicate that Mr Gray’s offending behaviour was driven by sexual pre-occupation”. The judge said that he did not understand that, and he did not know how it found its way into the report.

In his written submissions Mr Rosser described those criticisms of the report as unfounded, and accused the judge of supplanting the role of probation. We reject those submissions; dangerousness is a matter for the court, the role of probation is to assist in that evaluation and if the report is found by the judge to be of little or no assistance he or she is entitled to say so. Indeed, a judge is always entitled to take a view that differs from that of the probation officer, especially if the judge has had much longer in which to form a view of the defendant over the course of a trial than the much briefer opportunity given to the probation officer, as was the case here.

The sentiments expressed by the judge, though perhaps articulated in unnecessarily robust terms, are quite understandable, given what the police found on the appellant’s phone and his computer, quite apart from his calculated offending behaviour towards C over a period of many years. It is difficult to see how the author of the pre-sentence report could possibly have said he had no evidence that the appellant’s behaviour was driven by sexual preoccupation if he had read even a small handful of the messages exchanged between the appellant and C (to which he does not refer). In any event she was not his only victim; there were both child and adult victims of his filming activities. The counts of voyeurism, particularly those relating to patients he was treating as a paramedic, as the judge observed, indicated that the appellant was interested in the sexual gratification of himself “in utter breach of trust.” The judge made it clear that he was not finding the appellant dangerous because he might continue his secret filming activities, but rather because of the light that those offences shed on what was driving his offending behaviour.

Despite the appellant’s lack of previous convictions, his previous good character, the absence of any violence as part of the offending and, perhaps most pertinently, his likely age upon release, there was sufficient material to justify a finding of dangerousness. The appellant is a manipulative predator, devoid of insight and empathy, and the judge was also aware of the disturbing views he had expressed to a former partner deprecating societal taboos on sexual intercourse with family members and children.

Mr Rosser submitted that a judge must safeguard against falling into the trap of finding an offender to be dangerous merely because the offences of which that offender has been convicted are serious and caused serious harm to the victim. That is of course true, but in this case the judge plainly did not make that error. It is both permissible and appropriate for a judge to form a view about the future risks that someone poses to the public based upon the evidence relating to the facts and circumstances of the offence or offences of which they have been convicted (including their nature) as well as other matters such as lack of insight and victim empathy, and factors triggering the offending behaviour. In the present case, the judge was fully entitled to reach the view that he did for the reasons that he gave. He was also entitled to take the view that a determinate sentence alone would not suffice to meet the risk to the public that he had identified. Ground 2 of this appeal is therefore dismissed.

Turning to the length of the custodial aspect of the sentence, Mr Rosser’s principal complaint was that the judge disagreed with both counsel as to the correct categorisation of the rape offences under the definitive guideline. Whilst there was no dispute that the offences fell within category A for culpability, the judge should have accepted that this was category 2 for harm because of the severe psychological harm inflicted on C. Therefore, the starting point for a single offence should have been 10 years, rather than 15 which was the starting point in category 1. Mr Rosser submitted that the degree of planning and brainwashing of C over many years were factors catered for in the assessment of culpability, and should not have been used to elevate the harm into category 1; if actual pregnancy is regarded as category 2 harm then the risk of pregnancy could not be justifiably treated as category 1 harm; and extreme vulnerability of the victim due to personal circumstances was already taken into account in category 2 and could not be a justification for moving into category 1 in this case.

If there had been just one count reflecting a single rape, there may have been considerable force in those submissions. However, this was a case of particular gravity, in which the judge was not only sentencing for multiple offences of rape committed over a five-year period against a particularly vulnerable victim, but for all the criminal offending that led up to those rapes, and for the sexual exploitation of C for money once she was completely under the appellant’s control. The number of rapes alone would have justified treating this as category 1 offending. There was nothing wrong with the starting point of 15 years which the judge took.

The wider offending spanned a much longer period than the rapes, 11 years in all. There were aggravating features which the judge identified, including the presence of another child, (the appellant’s son by a former partner) in the house at the time of the rapes. The guideline makes it clear that a case of particular gravity could merit an upward adjustment from the starting point even before adjusting for aggravating and mitigating factors. The judge took the orthodox approach to totality by selecting Count 15 as the lead offence and reflecting the whole of the criminality in the sentence passed on that count, with similar or shorter concurrent sentences on the remaining counts. He said he was going outside the top of the range in the guidelines, and he explained why.

Regardless of the precise route by which it was arrived at, the question that this court must ask itself is whether a sentence of 20 years is manifestly excessive. Some judges may have given a lower sentence, but other judges could well have gone higher for prolific and prolonged offending of this nature and seriousness. Standing back and looking at the case as a whole, we are not persuaded that 20 years was outside the range that was reasonably open to the trial judge. No complaint is or could be made about the extended licence period of 4 years.

For those reasons, we dismiss the appeal against sentence.