St Helena Court of Appeal Judgments

 

IN THE APPEAL COURT OF ST HELENA                                                                    SHCA 4 of 2024

 

In the matter of the Appeal of

XY

Applicant

-and-

 

THE ATTORNEY GENERAL OF ST HELENA

 Respondent

 

Mr Kemp appeared for the Attorney General

Miss Evans appeared for the Applicant

 

Before: Sir John Saunders (President), Lady Drummond and HHJ Mayo DL (Justices)

sitting in London on 23^rd March 2025

 

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JUDGMENT OF THE COURT

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Section 93 of the Welfare of Children Ordinance 2008 & Section 1 Sexual Offences (Amendment) Act 1992 apply to this ruling. Nothing may be published if it is likely or calculated to lead members of the public to identify any complainant or person under 18 involved in these proceedings

 

1.        On 19 June 2024, following a trial which commenced on 11 June before Judge Simmons and a jury, the Appellant was convicted of 17 counts alleging numerous sexual offences on young females. He was found not guilty of 5 counts. On 25^th July 2024 the Appellant was sentenced to a total of 20 years imprisonment. He appeals against sentence and seeks leave to appeal his convictions on the basis of fresh evidence which has come to light since his convictions.

 

2.        The facts: The Complainants in this case were three sisters who were nieces of the Appellant. There are orders in place protecting their identities so I shall refer to them as AB; CD; and EF in age order. At the material time the Appellant was living with his mother who was the Complainants’ grandmother. The offences took place at the home of either the grandmother or the Complainants. They took place over a period between 1986 and 1998 when the Appellant was aged between 19 and 31. The offences were first reported to the police in October 2023 by the youngest of the sisters EF which was followed by disclosures to the police by the other two. As you would expect the reasons for the late disclosure were investigated during the trial.

 

3.            EF’s  account to the police and the prosecution case at trial was that sexual activity started with the Appellant when she was only 7 or 8. It continued until she was 13 to 16 years of age. It began with touching her vagina over her clothing. It then developed to inserting his finger into her vagina and making her touch him. That happened on many occasions and then the Appellant moved on to offences of rape which continued over a substantial period of time. EF was 8 years old when the first offence of rape occurred. Some of the counts on the indictment alleged offences happening on multiple occasions between certain dates in order to reflect the number of occasions on which the offences occurred.

 

4.            AB, the oldest sister also described the Appellant touching her vagina both over and under clothing. It began when she was about 8 or 9 but happened on many occasions.  Later the Appellant began to rape AB and that happened on a number of times when she was aged between 10 and 15. AB said that she told her partner GH about the abuse much closer to the time of the events. GH made a statement in which he said that AB’s complaint was made approximately 23 years ago. He was not called at the trial, but his statement was read to the jury as the defence had no reason to doubt that it was correct. AB confirmed in an interview to the police that she had reported the abuse to GH about 20 years before making her statement to the police.

 

5.            CD gave evidence that she had been sexually abused by the Appellant but she did not say that he had raped her. She said that he had inserted his finger in her vagina on a number of occasions. She was 7 to 9 years of age when he first penetrated her vagina with his finger.

 

6.            It was abundantly clear from the evidence of the Complainants and their victim impact statements that they were all seriously affected by what the Appellant had done to them.

 

7.            The single ground of appeal against conviction is on the basis of fresh evidence which has come to light since the trial which, the Appellant says, renders the convictions unsafe. No complaint is made, or could be made, as to the conduct of the trial or the summing up and the route to verdict. The legal directions are accepted to have been comprehensive and entirely accurate.

 

8.            After the conviction, the defence were contacted by another relative of the family who was living in Denmark. She has provided a witness statement in which she records having received a message on 27^th July 2024 on social media from GH in which he says that he had heard about the sexual abuse 9 months previously. She also supplied a screen shot of the message. In that message GH said as follows:

“Hi not sure why you blocked AB yesterday I can only imagine that your mum told you too. Maybe she don’t want to know the truth but here it is. Your uncle XY her brother raped and sexually abused AB and her sisters for years. I only found out myself about about 9 months ago, when it first came out so u can imagine what a fucked time this last year has been.”

In the statement that GH made to the police dated 18/1/2024 (which was read to the jury) he had said:

“AB first disclosed to me, she was sexually assaulted by her uncle (XY) a few years after we had come to England. I can't remember exactly when it was or even where exactly we were, but it was roughly 23/24 years ago. Not sure how the conversation started, but AB told me she was raped by XY, which really upset me, I didn't take it too well. AB was hesitant to share any details with me, but I kept pushing because I needed to know. She told me she was sexually abused by him at her nans house. I asked her how old she was and she just said she was really young, she would not tell me her age and got really angry when I kept asking. I was so upset, I wanted to know how he did it to her, reluctantly, she told me he sexually abused her by having sex with her from behind. At this point we both were crying, upset and she begged me to stop asking her any more questions, so I stopped, believing it was only the one time. The Appellant argues that those two accounts are inconsistent and had the defence known of this inconsistency at the time of trial they would have insisted he was called to give evidence and been cross examined on the inconsistency. “

 

9.            The defence submit that the text message dated 27 July 2024 is inconsistent with the evidence from GH’s statement led at trial. They submit that the text would have been of significance had it been adduced at trial. The defence case at trial was that the three Complainants had put their heads together to concoct this case against the Appellant. They were able at trial to point to some things which might have supported that theory, in particular that one of the sisters had tried to persuade another female to complain to the police that she had been raped by the Appellant. This rape was denied by the alleged victim and this denial was put before the jury by way of an admission. The defence say that had they been able to rely on this inconsistency at trial in addition to the other matters that it would have had a significant effect on the jury and would support their contention that the allegations were made up. Accordingly they argue that we should conclude the convictions are unsafe.

 

10.     The defence contend that the fact of an inconsistent statement having been made is capable of belief and the material was clearly not available to the defence to use at trial as the inconsistent statement had not been made before the trial was over.

 

11.     We agree that the material was not available to the defence at trial and that the suggestion that GH has said different things was on the face of it capable of belief. Accordingly we give leave to the Appellant to rely on this fresh evidence. 

 

12.         It is therefore for us to decide whether the statements are inconsistent and, if they are, whether that renders the verdicts on the indictment unsafe.

 

13.         In response to the fresh evidence application, a further statement has been taken from GH  dated 19/3/2025. He accepts that he sent the message to the cousin in Denmark. He says that the July message and his statement which was read to the jury are not inconsistent. He says that the only thing that he was told 20 plus years ago was that AB had been raped on one occasion by her uncle. It wasn’t until the Appellant was arrested that he appreciated that AB had been raped and indecently assaulted on many occasions and that her sisters had been victims of sexual assaults as well. It was the fact of multiple sexual assaults on AB and the attacks on her sister that he only got to know 9 months before sending the message.

 

14.         We have had the benefit of hearing and viewing the interview of GH with  Andre Bak of the St Helena police force prior to the making of that statement. Having heard that and asked Miss Evans for the Appellant what further questions she would wish to ask GH, we decided that we did not need to hear evidence from him.

 

15.     Having considered his statement and his answers in the interview, we are satisfied that there is in reality no inconsistency between the text message and his statement which was read to the court. Indeed, on a close reading of the text in the light of his explanation, the statement and the text are consistent one with the other. The text clearly relates not to one occasion of rape on AB but the sexual abuse of all of the sisters. At the time the complaint was made to him, AB had only told him about the one incident of a rape by the Appellant on her. It wasn’t until such a time as  the complaints were being made by the sisters to the police that he knew of the full extent of what had happened and that is what he was talking about in his text.

 

16.         Accordingly, while we give leave to adduce the new evidence, we are satisfied that there is nothing in it which would render the verdicts unsafe.

 

17.         Appeal against sentence. The appeal against sentence raises an issue of principle which we will address in the course of this judgment.

 

18.         The Appellant was sentenced to 20 years imprisonment in total for the 17 counts of which he was convicted. The Judge passed concurrent sentences for offences relating to each of the Complainants. He selected in relation to each Complainant the most serious offence and passed a sentence which was intended to reflect the overall offending with that particular Complainant. While he passed concurrent sentences for the offences relating to each of the Complainants, the sentences for each were made consecutive to each other giving a total of 23 years. The Judge then reduced that total by 3 years to reflect the conditions in St Helena’s prison.

 

19.      There is and cannot be any complaint at the way the Judge structured the sentences. The complaints are: (1) that the Judge in applying the sentencing guidelines for England and Wales wrongly categorised the level of harm suffered by AB and EF as level 2 on the scale when it should have been level 3. The harm to CD, he assessed as level 3; (2)  the Judge’s decision to allow no reduction in sentence for the Appellant’s good character in the years after the commission of the offences was wrong in principle, and (3) that the Judge failed to give adequate weight to the issue of totality. Also in the grounds of appeal against sentence, the Appellant complains about the suggestion in the sentencing remarks that the attacks on AB and EF amounted to campaigns of rape.

 

20.         It needs to be remembered that the Sentencing Guidelines give guidance as to the proper sentence for an individual offence. In this case, the Appellant had been convicted of at least 36 offences of rape on AB and EF. Of those 36 rapes, 12 were committed on EF when she was under 13. In addition, there were numerous offences of indecent assault. It is for the Judge in any individual case to decide how to reflect in the sentence the number of offences that have been committed. Clearly the greater the number of offences the longer the sentence and where there is a very large number of offences, as in this case, the increase is likely to be correspondingly large. This court does not consider it helpful to talk about ‘a campaign of rape’ on the facts of this case. While the phrase is incorporated in the sentencing guideline, whether something can be properly described as a campaign is very subjective and often depends on an individual Judge’s use of language. The relevant factor in our view is the number of offences and in this case it was very large.

 

21.      We have considered whether the Judge was correct to decide that the psychological impact on AB and EF was ‘severe’ and therefore met the criteria for category 2 harm. We are satisfied that he was. The number of offences and the ages of the victims were very relevant to that issue. The Judge had the opportunity to observe the sisters giving evidence and to consider their victim impact statements. He was in the best position to assess the gravity of the harm and we are satisfied that he was perfectly entitled to conclude that it fell within category 2. It may well be that there were other factors which could have moved the harm into category 2 from category 3.

 

22.         The ground of appeal which we have found more difficult is whether the Judge should have given some credit by reducing the sentence to reflect the fact that since the offences which resulted in these convictions the Appellant has not offended for 26 years. As the Judge set out at paras 51 to 53 of his sentencing remarks, since that time the Appellant has formed a long lasting and stable relationship; he has two teenage daughters with his partner; he has worked continuously; he has built up a business and he has done some charity work. So, to an extent it could properly be claimed that the Appellant has had positive good character since the commission of these offences. At para 64 of the sentencing remarks, the Judge recognised that the Appellant has never been cautioned, let alone convicted of any offence and states that he has taken the Appellant’s good character into consideration. The Judge continued at para 65: 

 

‘I have considered that, where there is an absence of further offending over a long period of time, combined with evidence of good character, this may be treated by the court as a mitigating factor. However, the more serious the offending, the less the weight which should normally be attributed to this factor.’  

 

23.         We agree with the first observation but we are somewhat concerned with the second observation that the more serious the offending the less the weight that should normally be attributed to this factor. The more serious the offence, the longer will be the punitive part of the sentence and it would appear to be double counting if the severity of the offence also leads to a reduction in the credit given for good character.

 

24.            It has been made clear in the Respondent’s helpful written and oral submissions that this part of the sentencing remarks is a direct quote from paras 7 and 8 of the Sexual Offence Historical Guideline issued by the Sentencing Council of England and Wales. The guidance issued by the Council is followed in St Helena but it is only guidance. The sentencing guidelines are regularly reviewed and it might be appropriate for the Council to look again at this passage to see whether this is double counting. However, as it is in the guidelines we do not make any criticism of the judge for referring to it. The guideline for rape of a child under 13 says of mitigating factors:

 

‘in the context of this offence, previous good character/exemplary conduct should not normally be given any significant weight and will not normally justify a reduction in what would otherwise be the appropriate sentence’. Again we have some reservations as to whether this properly reflects the correct legal position.

Despite the Judge agreeing that good character following an offence could be a mitigating factor, the Judge did not in the end spell out clearly that he had given any credit for subsequent good character. He said at a later stage of his sentencing remarks:

 

‘This is not a case in which I am minded, because of the passage of time since your offending, to apply any discount. I can see no reason why you should benefit from the fact that your victims felt unable to talk earlier about what you did to them.’  

 

25.         The Judge did not give any particular reason for that decision. If one looks at all the sentencing remarks, it may be that the Judge was saying that, in relation to the passage of time since the offences, he was not applying any discount but that he did give a discount for good character after the commission of the offences. If that is what he meant, then we would find that unobjectionable but in our judgment it would have been made helpful if it had been made clearer in the sentencing remarks.

 

26.     Of course it is difficult for a Defendant to ask for credit for good character during the period of delay in reporting if the reason why the matter was not reported was because of the conduct of the Defendant.  Applying that to this case, the Complainants said that they had been told by the Appellant not to say anything at the time of the abuse. Further, EF said that in 2022 after the Appellant had visited her house and she had confronted him about what he had done, he returned and said that if she told anyone then he would make sure her children ‘didn’t have a Mumma’. That threat, if made, was of course made near the end of the 26 year period and was disputed by the Appellant. The Judge did not say that this allegation played any part in the matters not being reported and, in our view, it would have been important for him to refer to it if he had taken it into account. To the contrary, at paragraph 4 of the Judge’s sentencing remarks, he said  that in his view the reason the offences did not come to light sooner was because the victims did not wish to relive the trauma to which the Appellant had subjected them and wished to move on with their lives. That was perfectly understandable on the part of the Complainants.

 

27.     Having considered all those matters and what we regard as some ambiguity in the sentencing remarks, the decision we have to make is to consider whether the sentence of 20 years is manifestly excessive. We have concluded that it was not and that the total of 20 years was a just and proportionate sentence in view of seriousness of the offences, the number of them and the length of time over which they were committed.

 

28.      Finally, we have concluded that the complaint that the Judge did not take sufficient account of the principle of totality is ill founded. He clearly did take substantial account of it as he sets out in his sentencing remarks. Having determined that 15 years would have been an appropriate sentence on count 8 which relates to EF, he then reduced it to 10 to reflect that it was going to be consecutive to the sentences on the lead offences for AB and CD. He did the same in relation to the lead offence relating to AB. He reduced a sentence of 12 years to 9 in consideration of the principle of totality. There is nothing in this ground of appeal.

 

29.            It follows from what we have said that the appeals against conviction and sentence are dismissed.