About this case:

• Court:
  Court of Appeal
• Judge:
  Lord Justice Stephens

The 85-year-old man committed his most recent offence during the operational period of suspended sentences imposed in 2016 and 2017 and in breach of a Sexual Offences Protection Order.

Lord Justice Ben Stephens concluded that the sentence for breach of the SOPO, and the failure to activate the two previous suspended sentences, was unduly lenient.

Background

In January 2011, KT was convicted of four offences of sexual activity with a child under 13 and was sentenced to three years’ probation, together with a Sexual Offences Protection Order prohibiting him from going to places where children are likely to be present.

In July 2011 and October 2011, KT committed further sexual offences involving children – in one instance he was witnessed masturbating himself and exposing his genitals to children at Castlerock beach. KT was convicted of two counts of engaging in sexual activity in the presence of a child under 13, one count of exposure and two counts of breach of a SOPO. KT was not given a custodial sentence and was instead fined.

The Court heard that KT started to commit a series of offences in supermarkets in 2015, leading to him being convicted of eight counts of engaging in sexual activity in the presence of a child under 13, committing an act outraging public decency, and breach of the SOPO. In November 2016, KT was sentenced to two years imprisonment suspended for three years.

Prior to this sentence being imposed, in June 2016, KT committed a further offence of outraging public decency involving children and a further breach of the SOPO in a DIY store. In August 2017, KT committed a further breach of the SOPO – however, instead of activating the suspended sentence, the trial judge imposed a further sentence of one year’s imprisonment suspended for two years.

Again, in 2018, KT committed further offences of outraging public decency and breach of the SOPO at a garden centre. At his sentencing in March 2019, the trial judge said this was a “sad and somewhat troubling case in which the offender lived a blameless life until the age of 77” and imposed another suspended sentence.

Noting that KT had kept “out of trouble for 12 months whilst on bail”, the judge identified two factors which “enabled him to take a merciful view”: 

1. The children and the parents were unaware of the offending;
2. KT suffered from PTSD which had led to his medical retirement in April 1995. 

Unduly lenient

In the Court of Appeal, the Director of Public Prosecutions submitted that the failure to activate two previous suspended sentences, and to impose another suspended sentence, was unduly lenient.

Delivering the judgment of the Court, Lord Justice Stephens said that the sentences for breaches of the SOPO were unduly lenient. Lord Justice Stephens also said it was unduly lenient to not have activated the two previous sentences and to suspend the further sentence imposed in March 2019.

Lord Justice Stephens considered the sentencing guidelines in R v Millberry and ors [2003] 2 Cr App R (S) 31, which outlined three dimensions to consider in assessing the gravity of an individual offence:

• The degree of harm to the victim;
• The level of culpability of the offender;
• The level of risk proposed by the offender to society.

Section 19(1) of the Treatment of Offenders Act (Northern Ireland) 1968 provides that “[w]here an offender is convicted of a subsequent offence punishable with imprisonment… and the offence was committed during the operational period of a suspended sentence”, the court shall deal with the offender by one of a number methods – including an order that the suspended sentence shall take effect with the original term unaltered (pursuant to section 19(1)(a) of the 1968 Act).

Lord Justice Stephens explained that under section 19(1) of the 1968 Act, the duty is to activate previous suspended sentences in full unless “it would be unjust to do so in view of all the circumstances”.

Considering the factors which enabled the trial judge “to take a merciful view”, Lord Justice Stephens acknowledged that there was no evidence that any of the children were aware of what had happened in respect of these offences, but said there was obviously upset to the witnesses who saw what the offender was doing. Lord Justice Stephens said that “consideration of the other Millberry dimensions would have led to the conclusion that there was a not insignificant degree of culpability on the part of the offender and that the offender posed a significant risk to society requiring a high priority for supervision and intervention which is not provided in a suspended sentence”. He said the “most compelling circumstance in this case was the need to protect young children from a paedophile”.

Lord Justice Stephens was also of the view that PTSD suffered by KT could not carry any significant weight in mitigation.

Concluding that the appropriate sentence should be a determinate custodial sentence of three years, Lord Justice Stephens said that two years on licence was required in order to facilitate the completion of “work which will assist in protecting the public from harm from the offender and assist in preventing commission of further offence”.

• by Róise Connolly for Irish Legal News