Jailed paedophile will serve 12-year sentence despite reduction in charge
A convicted paedophile who sexually exploited a group of preteen siblings has seen his conviction downgraded by the Court of Appeal — but his 12-year prison term remained unchanged.
Jonathan Cumberbatch, 51, will not become eligible for parole until 2016, for one charge of sexual assault and three of sexual exploitation.
At an unknown date in July 2008, Cumberbatch induced the two young brothers and their sister to perform sex acts while he watched them in his Warwick home.
President of the Court of Appeal Edward Zacca noted that Cumberbatch remained a risk to others by his own admission.
“He has a previous conviction for the same offence,” Mr Justice Zacca added, referring to Cumberbatch's 1994 conviction for sexual exploitation.
Director of Public Prosecutions Rory Field told the court that in the 2008 offence, Cumberbatch enjoined the children to touch each other during a game of “truth or dare” in his jacuzzi.
The children were encouraged to perform further sex acts later that day.
The court heard the victims required extended psychological treatment in the aftermath.
Cumberbatch confessed to police after his arrest in 2010.
His early guilty plea was a mitigating factor at his July, 2010 sentencing by Puisne Judge Charles-Etta Simmons, who described the case against him as otherwise “damning”.
Cumberbatch was jailed 12 years for serious sexual assault, and ten years for each count of sexual exploitation — all to be served consecutively.
However, defence lawyer Larry Mussenden brought a successful appeal against conviction, pointing out that Cumberbatch had been mistakenly directed to plead guilty to the first charge.
Under the law, the charge of serious sexual assault requires more than one perpetrator.
Appearing for the Crown, Mr Field argued that anyone guilty of procuring children to perform such an act would be guilty of serious sexual assault.
Mr Justice Zacca, along with justices Sir Robin Auld and Sir Scott Baker, agreed to vacate the charge of serious sexual assault and replace it with simple sexual assault — which by itself carries a maximum sentence of 20 years.
However, as the Court heard opening submissions on the appeal of Cumberbatch's sentence, Sir Scott observed: “Your problem is that the label has changed — but the circumstances have not.”
Although a legal technicality had changed, the crime was “still, in layman's terms, a serious sexual assault”.
And, since Cumberbatch remains a self-confessed risk to others, the Court would not quash the parole restriction on his term, which raises the point of eligibility from the usual one-third to halfway through his sentence.