This appeal against length of sentence appears to have been successful on one ground.
Dennis Grains abuse in this appeal was probably at Greystone Heath Approved School, Warrington. More details on Grain and linking articles follow the appeal.
Some court reports have had victims names redacted and some assault details redacted.
This is a difficult balance – normally I would think that I should not “censor” details but on consultation with various people I have taken the decision to redact. This is mainly to protect victims, their friends and relatives from unnecessary detail and to stop the gratification of those who seek salacious details.
In addition to the obvious “victims redaction” to protect victims details, there may also be “assault redaction” across most of the spectrum of abuse. The assaults are left in the charges, but mainly redacted when repeated with reference to the individual. I have also redacted unnecessary detail of assaults.
Redaction may obscure sometimes the legal reason for the appeal, but should make no large difference to the vital information for researchers that these documents contain. That vital information is mainly names of the perpetrators, past addresses, institutions where assaults occurred, the actual charges the perpetrators faced, and dates – on which newspapers are pathetically inaccurate and this information enables the links between people and places and abuse at various times to be ascertained.
Some transcripts may have been subject to automatic reading software and whilst effort has been made to correct these, the text should not be regarded as definitive. Common mistakes in reprinting here are that quotation marks are sometimes not correct, replaced by odd symbols.
If you think that the balance is not correct or that a particular redaction needs reconsideration, please say.
This appeal is unredacted by cathy fox blog
Index of Newspaper and Journal articles on this blog 
Index of Court Appeals on this blog 
 EWCA Crim 1270
No: 201602346 A2
IN THE COURT OF APPEAL
Friday, 24th June 2016
Lady Justice Sharp DBE
Computer Aided Transcript of the Stenograph Notes of WordWave International Limited Trading as DTI 165 Fleet Street London EC4A 2DY Tel No: 020 7404 1400 Fax No: 020 7831 8838 (Official Shorthand Writers to the Court)
Mr R Jones appeared on behalf of the Appellant
The Crown was not present and was unrepresented
Mr Justice Edis: The applicant, Dennis Grain, is 84 years old. His application for leave to appeal against sentence has been referred to the Full Court by the Registrar. This is a case to which the Sexual Offences (Amendment) Act applies and no matter relating to the victim in this case shall be published during his lifetime if it is likely to lead members of the public to identify him as the victim of that offence. He will be anonymised also in the course of this judgment.
2. On 4th April 2016 in the Crown Court at Chester the applicant pleaded guilty to seven counts on an indictment. Counts 1 to 6 were offences of buggery under section 12 of the Sexual Offences Act 1956 and count 7 was an allegation of indecent assault contrary to section 15 of the same Act.
3. The judge imposed a sentence to which section 236A of the Criminal Justice Act 2003 applied because the offence was an offence of particular concern within the terms of that Act. The judge’s pronouncement of sentence was perfectly clear and accurate but the way in which it was subsequently recorded may have been technically inaccurate. We therefore make it clear that the judge’s sentences were as follows. In respect of count 1 to 6, there was a sentence qualified by section 236A of the 2003 Act, of eight-and-a-half years, with a custodial term of 90 months or seven-and-a-half years concurrently on each count. In respect of count 7 there was a concurrent term of 48 months. The operative sentences therefore, determining the custodial term, were those imposed on count 1 to 6 and a further period of 12 months’ licence under the provisions of the Act applies on completion of the custodial term.
4. Mr Jones, who appears for the applicant on this application, submits that no immediate sentence of imprisonment at all ought to have been imposed in the highly unusual circumstances of this case. Essentially he submits that the judge erred in applying the guidelines in this case, when he was not obliged to follow the guidelines by section 125(1) of the Coroners and Justice Act 2009 because he ought to have found that it would be contrary to the interests of justice to follow them.
5. The facts of the case are unusual. The applicant pleaded guilty, as we have said, on 4th April 2016 when the case was listed for a plea and case management hearing. The offences involved a series of buggery offences against X, who was at the time aged between 11 and 14 years. He was detained at an approved school. The applicant was employed as the housemaster at that school responsible for the care of that child.
6. X is now 54 years old. It is unnecessary, for the purposes of this judgment, to set out in detail the allegations which he made. Suffice it to say that it is apparent from what we have already said that these were offences of the utmost gravity and characterised by a very severe breach of trust. X has made a victim personal statement which we have read with care. It shows long-term damage, lifelong harm caused by the betrayal of the trust which he was required by his circumstances to place in this applicant.
7. The judge also considered the victim personal statement. He said that the harm which it showed was not severe in the context of the offence. By that he did not mean that the consequences were not serious but only that they were consequences of the kind which are frequently found in offences of this kind and therefore already taken into account by the guideline. They were not consequences which were so far out of the ordinary that they should add to the sentences recommended by the relevant guideline.
8. The unusual circumstances of this case are these. In 1995 this applicant was prosecuted for a series of other very similar offences against other inmates at various institutions at which he had been employed. He pleaded guilty and was sentenced to 7 years’ imprisonment, which he served and which term has of course long since expired.
9. At the time of that investigation by the police he confessed to abusing people who had not by that stage complained about him. Among those was X. X however was not included in those proceedings as a victim and no count reflecting abuse of X was prosecuted in 1995. This was because X made a statement to the police when he was approached denying that there had ever been any abuse of him at all. He did that some 20 years after the offences had been committed against him because he was still so ashamed of what had happened that he did not want to tell anybody about it.
10. In 2014 he finally told his wife what the source of his continuing distress was and she contacted the police. X made a statement in November 2014 which formed the basis of this prosecution.
11. When he was arrested and interviewed about the offences against X the applicant admitted sexually abusing him but denied any offence of buggery. Some of those denials found their way also into the pre-sentence report but, as we have said, when arraigned at the plea and case management hearing the applicant pleaded guilty on the basis of the full facts alleged against him.
THE APPLICANT’S ARGUMENT
12. Mr Jones, who has argued the applicant’s case with commendably succinct persuasiveness, contends that if X had made a statement in 1995 saying what had been done to him, and if he had been included in that prosecution as a victim, the end result would have been the same, a sentence of 7 years’ imprisonment. That is why Mr Jones says that the justice of the case required the judge to depart from the guidelines and not to follow them. He says that it was in these circumstances wrong in principle to impose any custodial sentence at all now.
THE JUDGE’S APPROACH
13. There is no doubt that that proposition was well in the mind of the sentencing judge, His Honour Judge Flewitt QC, who rejected it. In sentencing remarks of conspicuous clarity the judge held that he was obliged to follow the guidance contained in the Sentencing Council’s Sexual Offences Definitive Guideline, in particular by reference to Annex B where the Sentencing Council set out the approach to sentencing historic sexual offences. The judge had regard to paragraph 10, which reads as follows:
“If the offender made admissions at the time of the offence that were not investigated this is likely to be regarded as personal mitigation. Even greater mitigation is available to the offender who reported himself to the police and/or made early admissions.”
14. The judge held that the appropriate part of the guideline to which reference ought to be had was that dealing with the offence of rape of a child under 13. He held that this case fell into category 2A because of the various factors to which we have already made reference. Category 2A has a starting point of 13 years’ custody and a range of 11 to 17 years. The judge decided that the number of offences against X and the very grave abuse of trust involved in targeting a vulnerable victim required a substantial increase in that starting point of 13 years within that range.
15. The judge considered the sentence of 7 years which had been imposed in 1995. He observed that under the current guidelines a sentence very substantially in excess of 7 years would be imposed. He rejected the suggestion that he should not follow the modern guidelines and said that the events in 1995 were a significant mitigating factor reducing the starting point of 16 years which he had arrived at and reduced the sentence before plea discount to one of 10 years. He then made a 25% discount in relation to the plea which produced the custodial term of the sentence to one of seven-and-a-half years.
16. ARGUMENT ON GROUND 2
17. By his second ground of appeal Mr Jones contends that the judge erred in that respect and that he should have allowed a full discount of one-third. That is because the judge was misinformed. He had understood that there had been a preliminary hearing and therefore the plea and case management hearing was not the first reasonable opportunity at which a plea could have been entered. In those circumstances, as the judge understood them to be, a discount of 25% would be entirely in accordance with practice as specified in the relevant guideline and in decisions of this court. However, Mr Jones says, on the facts as they truly are (and he tells us that he has confirmed them with the court) a full discount should have been allowed.
18. There is no doubt that this factual situation causes a difficult sentencing exercise and it is necessary to evaluate Mr Jones’ first submission by reference to principle. if the guidelines apply the judge’s starting point of 16 years cannot be criticised. The issue is what effect the 1995 sentence ought to have had. Should it have led to a very substantial reduction in that starting point, as the judge held, or should it have led to a non-custodial sentence as Mr Jones submits?
19. The position where the court sentences for offences committed before a sentence of imprisonment was imposed for similar types of offending has been considered by this court on previous occasions: Attorney-General Reference No 92 of 2009 ( R v Brett )  EWCA Crim 524 and R v Smith  EWCA Crim 2091 are examples. Generally the sentence is not aggravated in those circumstances by the subsequent sentence or convictions because they are not previous convictions in the terms of section 143 of the Criminal Justice Act 2003.
20. But the subsequent sentence does is relevant to the term imposed in respect of the prior offence. It does not mitigate the later sentence in many cases, because the position will be that the offender was not prosecuted for the earlier offence at the time of being prosecuted subsequently because he was not candid with the authorities. He declined to make a clean breast of it.
21. This consideration does not apply here because this applicant did confess to offending against X in 1995. He is plainly entitled to credit for his frankness in 1995. It would also be relevant, as the judge held, to the amount of credit allowed on that basis that in 2014 when he was interviewed he was dishonest. He admitted abuse against X but denied any offence of buggery. He said that X was not credible because he was “a street child” and they were all “ardent liars”. The judge noted that the tone of that interview reflected the contempt which this applicant continued, even now, to have for his victims.
22. In the case of Smith , to which we have just referred, the court said this at paragraph 8 in the context of such a case where the judge had been asked to give an indication of sentence in accordance with the principles in Goodyear:
“The judge declined to do so, but he did say that he would take totality into account — in other words, to consider what the overall sentence would have been if Smith had been sentenced in 2008 for his offences on A, as well as the offences in the early 1990s.”
At paragraph 12 the court said:
“The problem of how to deal with offences which pre dated offences for which the appellant had already served a prison sentence arose in a particularly stark form in Attorney General’s Reference No 92 of 2009  EWCA 524 (Crim) . In 1987, when the offender was 35, he was sentenced to terms totalling seven years’ imprisonment for a series of rapes on his daughter, when she was aged between 8 and 15, a series of indecent assaults on his son when he was aged between 7 and 13 (many of which would nowadays be charged as rape) and indecent assaults on three other girls. Those offences had occurred over a long period of time in the 1980s. He was sentenced on the basis that he had been extraordinarily frank about his offending, that he had not committed any offences prior to 1980 and that he was deeply remorseful for what he had done. Many years later, it transpired that for about a year in the early 1970s, when he was in his early twenties, he had been raping a 13 year old girl and had subjected her to very serious sexual indignities. When he came to be sentenced for these offences in 2009, he had been out of prison for something like 20 years. He was given suspended sentences of imprisonment. The Court of Appeal quashed the suspended sentences and substituted for those sentences sentences totalling eight years’ imprisonment. In giving the judgment of the court, Hallett LJ said at  and :
’28. When the 1987 offences came to light, it was open to him to reveal to the court that he had abused another child and harmed her also. He did not do so. He did not wipe the slate clean. He therefore denied himself the freedom from subsequent prosecution and punishment which a full confession would have given him. He is the author of his present situation. In our judgment it would be wrong to reward the offender’s lack of frankness by imposing a short suspended sentence.
30. The offender may have led a law abiding life since his release from the seven year sentence. He may have put his offending behind him. Unfortunately, the victims of his offences cannot do so. The harm he has caused them will be lifelong. Those who decide to prey upon young children in a sexual fashion must be aware that there is no limitation on proceedings for sexual assault, and if ever their victim or victims dare to speak out, the offenders will be prosecuted and, if convicted, they will be punished severely. There can be no premium on allowing an abuser to abuse a child, hoping that the child will not feel able to disclose what has happened.’
That applies to this case. It is precisely because Smith did not come clean about his previous offending when he was prosecuted in 2008 that it would not have been appropriate for the judge to adjust his sentence for the newly discovered offending by reference to the overall sentences which would have been passed in 2008 if the whole of his offending had been known. That is why we reject the submission made in writing by Miss Molly Pinkus for Smith that holding Smith’s failure to make a clean breast of things in 2008 should not be held against him because it offends against the principle of self-incrimination. That is not to say that totality has to be ignored entirely, and Judge Carr was right to take totality into account. But as Hallett LJ said in Attorney General’s Reference No 92 of 2009 at :
‘Albeit we do not lose sight of the principle of totality, totality would have been of far greater relevance had the offender been candid with the court back in 1987.'”
23. More recently on 21st June 2016, a different constitution of this court in the case of R v Dyer  EWCA Crim 829 , applied the principle in Smith and held in different factual circumstances that the approach in principle should be that identified in Smith , namely this: In a situation where an offence was committed before a sentence of imprisonment was imposed for other similar offences the court should review the totality of the offending in accordance with the modern guideline and practice and consider whether taking into account the old sentence and the sentence which is about to be imposed the result is proportionate to the whole of the offending. This means that for the purpose of this case the court should consider the modern Definitive Guideline in deciding how to view the 1995 sentences. In our judgment, quite clearly, if this applicant fell to be sentenced now for all of his offending, including the offences against X and the offences from 1995, the court would apply the rule identified on page 29 of the Guideline as follows:
“Offences may be of such severity, for example involving a campaign of rape, that sentences of 20 years and above may be appropriate.”
If this applicant came to be sentenced now for all his offending, including the present offences against X, under the modern approach it is likely that a sentence well in excess of 20 years would be imposed before plea discount.
24. In the result, taking the 1995 proceedings together with these proceedings the applicant has been sentenced to a total of fourteen-and-a-half years’ imprisonment. In our judgment, this is not manifestly excessive for the offending taken overall. It is true that he tried to clear the slate in 1995 and that he did not succeed. The reason for that was because part of the damage which he had caused to X was to traumatise him to such an extent that in 1995 he was unable to talk to anybody about what this applicant had done to him.
25. Those who behave as this applicant did to a great many children for whom he had care, over many, many years, run the risk that ancient offences may come to light at any time and, if they do, may result in further punishment which will be assessed in the way which we have just identified and in the way which the judge in this case did. We therefore consider that the first ground of appeal relied on by Mr Jones is not arguable and we would refuse leave to argue it.
26. However, Mr Jones’ second ground does have merit and we do give leave to argue that. The judge was misinformed. On the basis of the information which the judge had about the history of proceedings his discount of 25% was absolutely right. However, on the information which we have it was not and therefore this appellant (as he now is) is entitled to additional credit against the custodial term which should be reduced from seven-and-a-half years to 6 years and 8 months. That remains a sentence governed by section 236A. The sentence totals 7 years and 8 months because the additional 12 month licence at the conclusion of the custodial term will apply. To that extent this appeal is allowed.
Dennis Grain is known to have abused at
- Axholme House, Wilsic Hall School, Wilsic Hall School, Doncaster for children with emotional and behavioural difficulties 1979-1982 approx
- Danesford Childrens Home in Cheshire run by the Methodist charity, National Children’s Homes (NCH). He also ran the Scout group
- Greystone Heath Approved School, Cheshire
He was also a Housemaster at Eton  and although I have no details of abuse there, he is unlikely to have stopped offending. Perhaps they are better at covering up at Eton. I would expect them to carry out an investigation into Dennis Grains time at Eton.
Unfortunately I do not have time to do a full post about Dennis Grain and the abuse at the insitutions he was at.
More research is needed on a timeline of Dennis Grain and his offending, location and dates and linking abusers to each other
The child abusers include John Clarke, Joseph Smith and Brian Hudson at Danesford and Jack Bennett, Alan Langshaw, Keith Laverack and Stephen Roderick Norris, Brian Percival and Roy Shuttleworth at Greystone Heath.
For Keith Laverack I have written Keith Laverack Child Abuser and Cambridgeshire Review of Childrens Safeguards March 1997 
For Roy Shuttleworth see post Roy Shuttleworth Court of Appeal 18 June 1999 [1a]
Also see Spotlight on Abuse Dennis Grain [2a] and other posts
See Greenlight  for Dennis Grain and linking posts on Greystone Heath, Axeholme House, Eton and others
Please note that victims of abuse may be triggered by reading this information. These links are generally UK based.
- The Sanctuary for the Abused [A] has advice on how to prevent triggers.
- National Association for People Abused in Childhood [B] has a freephone helpline and has links to local support groups.
- One in Four [C]
- Havoca [D].
- Useful post on Triggers [E] from SurvivorsJustice [F] blog.
- Jim Hoppers pages on Mindfulness [G] and Meditation [H] may be useful.
- Hwaairfan blog An Indigenous Australian Approach to Healing Trauma [J]
- Survivors UK for victims and survivors of male rape or the sexual abuse of men [K]
- Voicing CSA group [L] helps arrange survivors meetings in your area
- A Prescription for me blog Various emotional support links [M]
- ShatterBoys -“Male Survivors Of Childhood Sexual Abuse Inspiring change, Through Shared Experience Whilst Building Connections…Together We Can Heal” [N]
 Index of Newspaper and Journal articles on this blog https://cathyfox.wordpress.com/2015/05/23/newspaper-stories-index-timeline/
 Index of Court Appeals EWCA on this blog https://cathyfox.wordpress.com/2015/05/08/a-timeline-of-court-and-ewca-documentation-on-cathy-fox-blog/
[1a] 2015 Sept 26 Cathy Fox Blog Roy Shuttleworth Court of Appeal 18 June 1999 https://cathyfox.wordpress.com/2015/09/26/roy-shuttleworth-court-of-appeal-18-june-1999/
[2a] Spotlight on Abuse Dennis Grain https://spotlightonabuse.wordpress.com/tag/dennis-grain/
 2014 Sept 2 Cathy Fox Blog Keith Laverack Child Abuser and Cambridgeshire Review of Childrens Safeguards March 1997 https://cathyfox.wordpress.com/2014/09/02/review-of-safeguards-for-children-in-cambridgeshire-christine-walby-march-1997/
 Greenlight Dennis Grain https://webbrain.com/brainpage/brain/0FE31538-2121-8495-33A5-86073BE95DE1/thought/918#-955
…Dennis Grain had previously attacked boys in Danesford childrens’ home in Congleton, opening the door to three others, John Clarke, Joseph Smith and Brian Hudson, who set about the boys with relish. Dennis Grain, in the meantime, went off to work at Eton, where he became a housemaster. The web is almost endless.
 Greenlight Axeholme House https://theneedleblog.wordpress.com/operation-greenlight/yorkshire-humber/doncaster/axeholme-house/
 Dennis Grain – Housemaster at Eton https://webbrain.com/brainpage/brain/0FE31538-2121-8495-33A5-86073BE95DE1/thought/918#-2242
[A] Sanctuary for the Abused http://abusesanctuary.blogspot.co.uk/2006/07/for-survivors-coping-with-triggers-if.html