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England and Wales Court of Appeal (Criminal Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Criminal Division) Decisions >> Attorney-General's Reference No 29 of 2008 (Jon Peter Dixon) [2008] EWCA Crim 2026 (31 July 2008)
URL: http://www.bailii.org/ew/cases/EWCA/Crim/2008/2026.html
Cite as: [2008] EWCA Crim 2026
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CRIMINAL DIVISION
Strand London, WC2 |
||
B e f o r e :
(President of the Queen's Bench Division)
MR JUSTICE SIMON
MR JUSTICE AKENHEAD
____________________
| REFERENCE BY THE ATTORNEY GENERAL UNDER | ||
| S.36 CRIMINAL JUSTICE ACT 1988 | ||
| ATTORNEY-GENERAL's REFERENCE NO 29 OF 2008 | ||
| (JON PETER DIXON) |
____________________
Wordwave International Limited
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(Official Shorthand Writers to the Court)
Mr S Nichol appeared on behalf of the Offender
____________________
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- SIR IGOR JUDGE, P: This is a reference by Her Majesty's Attorney-General under section 36 of the Criminal Justice Act 1988 of a sentence passed in a difficult sentencing decision, following the offender's conviction on 18th January 2008, at Manchester Crown Court before His Honour Judge Atherton, of three offences: meeting a child following sexual grooming, assaulting a child under the age of 13 by penetration and attempted rape of a child under 13. We must record at the outset that although the descriptions assault and rape are completely accurate in law, nothing that occurred in this case happened without the complete consent of the child in question.
- The offender is Jon Dixon. He was born in October 1987. He is now 20 years old. He was 19 at the time of these offences. He was before these offences a young man of good character.
- The identity of this child must not be published. We shall describe her as "L". She was born in May 1995. In February 2007 she was 11 years old, living in Greater Manchester. At that time the offender was 19 years old. He also lived in Greater Manchester, but there was some geographical distance between their respective homes.
- In February 2007 L began to use a chat-line web site called Flirtomatic. She created a profile of herself in which she said that she was 20 years old. She said later that she thought she had to be over 18 to join the web site and that was why she described herself as 20.
- L's profile was noticed by the offender. There is no doubt that at the time he believed her to be 20 years old. He contacted her on the first occasion on 20th February.
- Thereafter the two of them were regularly in contact with each other and before long professing their love. By 25th February the tone of the contact between them had become overtly sexual. The precise details do not matter. We have looked at them. The girl's comments on the web site were no less sexually explicit than the offender's.
- On 25th February L sent an email to the offender, asking this very stark and in context important question, "Does age matter?" The offender, who thought that the girl was slightly older than he was, replied that it did not and indeed, reflecting his genuine belief at the time, he said, "It's cool having a woman older than me." By the beginning of March they were referring to each other in their communications as Mr and Mrs Dixon, and the offender suggested that they might have a baby together. Indeed between 22nd February and 5th March something like 900 messages passed between the two of them. The offender asked the girl to meet him, but she explained that she was busy at work.
- Then, on 6th March the story changed. The girl told the offender that she was 12 years old (as we have recorded she was in fact still aged 11). That information clearly surprised the offender, but he said that it made no difference to his feelings for her. But he added that they would not be able to have sexual intercourse because he would be, to use his words, "put away". Nevertheless, six minutes later, he sent her a message in stark terms asking her what she would do with a 9-inch penis. That same evening he asked for, and apparently was sent, a photograph of this girl naked, and he was very keen to meet up with her.
- Their communications that day concluded by L telling him that she was only 11 years old, and he continued as if this made no difference. He asked her for her bra size. He told her that he was masturbating over the picture that she had sent him.
- At this stage the girl was perfectly content for their relationship to continue, but — and it is a very important but — it is perfectly obvious that by 6th March the offender knew that this girl was not the 20-year-old woman he thought he was communicating with. At that stage this relationship, still only communication through modern technology, should have been brought to an immediate end.
- Instead, on the following day the offender told the girl that he was desperate to see her, so that they could have sex. He told her to lie to her parents so they could meet up, and that evening they exchanged a series of sexually explicit messages. They also discussed possible methods of contraception. She was as willing as he was.
- On 9th March the offender sent her the following message, "Tell truth ok I just wanna know babes if we have sex right and you're that age would you call rape honey." She replied by saying it would not be rape as the offender was her boyfriend. The offender responded, "I know that babes I wanna fuck you but your 11 and no matter what that's rape according to the law hun I don't care I want you forever."
- They met by arrangement on the evening of 10th March, while the girl was shopping with her family.
- Two days later the girl pretended to be ill to avoid going to school, and she spent the day exchanging yet more sexually explicit messages with the offender.
- On 15th March they met during the girl's lunch break at school. They kissed. After school they met again. They kissed and on this occasion the offender placed his finger in her vagina. They agreed to meet again on 17th March and decided that they would have sexual intercourse when they met.
- The girl's attitude to what had happened to her on 15th March can be deduced from a message she sent to the offender, "I loved it, babe. It was really hard when you were fingering me because I pushed against it... I loved you fingering me, babe... You should have done it harder to me to hear me moan."
- The following day they exchanged further messages. They discussed what would happen if the girl became pregnant, and he suggested that she should say that she had been raped in the dark by a boy she did not know.
- So to the meeting on 17th March, a Saturday. At the offender's request the girl sent him some money to cover his bus fare. He travelled to the area where she lived. She was nervous because they were close to her home address. They walked about for a couple of hours. They ended up in an alleyway. They started kissing. Eventually he pressed himself against her and asked her if she wanted to try it. She said she did not know, and he said, "We don't have to." Eventually, after this talk, he touched her in a sexual way. He put her hand onto his penis, but in the end sexual intercourse did not take place. What is clear is that at every stage of what happened during that particular incident he desisted from doing anything when she expressed any reluctance or concern.
- After the meeting they continued to exchange messages and they talked about a subsequent meeting. But on 20th March the mother of one of the girl's school friends told her mother that she had been seen with the offender outside the school on 15th March. Her mother confronted the child. The child told her mother something of what had been going on. The police were contacted.
- After the girl gave interviews to the police, which were video recorded, the offender was arrested. On his arrest the police seized letters which he had received from the complainant. He too was interviewed.
- At this stage it is right to record that neither of them was telling the whole truth about their encounter or relationship.
- In due course, after being charged on 26th July 2007, the offender was arraigned before His Honour Judge Atherton and he pleaded guilty to the three offences referred to earlier in this judgment. Those pleas were accepted by the prosecution.
- The case was adjourned for the preparation of a pre-sentence report. When that was eventually prepared it did not provide the judge with the assistance he needed. In essence, his concern about the report was that it ignored the realities of the child's own commitment to this sexual relationship. The way the judge put it very early in the exchanges with counsel for the defendant (as he then was) is that one "gets the impression from the pre-sentence report that it was all of the defendant's making." The judge indicated, and fairly so, that that was not true.
- A further report was prepared for the judge from Dr Hird, a Consultant Forensic Clinical Psychologist. The judge of course had her report and we have studied it. Without going into detail, it shows a very troubled childhood. The offender was statemented at the age of eight. He has low average intelligence quotient. He is immature and what is entirely apparent from the report he is properly to be described as a loner.
- There is also evidence, and was before the judge, that during a short time when the offender was remanded in custody in the course of the proceedings which eventually culminated in the sentencing decision, there was evidence that he had showed a tendency to self-harm.
- During the course of the hearing before the judge it was accepted by the prosecution that the girl had been a willing participant in everything that had taken place. The judge decided that he should read the transcripts of all the interviews that had taken place with her, and to read the messages that had passed between the two of them.
- Eventually, on 8th May, having considered all this material, the judge proceeded to sentence. It is fair to the judge to record that it is quite obvious that he had given very careful thought to the decision which it fell to him to make, and he realised that the decision involved some very sensitive and difficult conflicting considerations.
- Again, we shall not read out everything he said, but it is clear to us that, quite apart from the care that the judge took in addressing the facts of the case, he reminded himself of the Definitive Guidelines in relation to sexual offences, issued by the Sentencing Guidelines Council. He recognised the particular points relied on by Mr Nichol. It was not the case where serious sexual activity with the child had followed grooming by an older man. The way in which counsel for the offender had carefully, and with caution and deference, pointed out the nature of the child's behaviour, submitting that it was relevant to the sentencing decision; and finally of course the matters of personal mitigation, which were set out in the report from Dr Hird.
- The judge reminded himself that it would be natural for the public, hearing of a case in which a 19-year-old boy had been in regular contact through texting with an 11-year-old leading to the sexual activity which had taken place between them, would take the view that the only possible sentence would be a custodial sentence. Having reminded himself of that general approach, which is entirely consistent with the views expressed by the Sentencing Guidelines Council, he noted that before these offences took place the child was very well aware of sexual matters; that the offender had not sought out a child on the Internet in order to groom a child and make her receptive to sexual activity; he believed he was joining an Internet chat room and believed that when he contacted the child she was indeed a 20-year-old who was communicating back with him; and that for a time at any rate, not only did he believe that she was an adult, but also that she was reciprocating in an adult way to his messages to her.
- However, and this is important, the judge also quoted from the father of the child, "He was the adult in this, he surely must know what the difference is between right and wrong, he could have walked away once he knew how old [the child] was... He was 19 and [she] was 11, which in my mind is wrong, it is not right at all." The judge rightly said that those observations were entirely correct. The offender was old enough to stop what was going on. As the judge put, it, "You knew that you should walk away and you knew that it was going to be an offence for what you did."
- In the end, having reflected on the various considerations, the judge passed the community order which we have indicated; an order which it is right to record, as Mr Nichol reminded us, has stringent conditions attached to it. Mr Nichol would say that this could not be regarded as a community order to be treated in effect as a let-off.
- The facts of this case speak for themselves. The aggravating features are contained within the analysis of what happened between these two individuals. The mitigating features too are immediately obvious, but we should add to it that the offender pleaded guilty and that he was a man of good character and still a young man.
- We have considered, because counsel on behalf of the Attorney-General has drawn our attention to, the Sentencing Guidelines Council Guidelines on Sexual Offences and we have reflected on them. We have had close regard to them and we have then decided on what the appropriate sentence would be, following our conclusion that, although the sentence imposed by the judge was in Mr Nichol's submission a tough practical sentence, it was a lenient sentence and one which was unduly lenient.
- We can explain briefly why. Without reading out all the judge's sentencing remarks and recognising the care that he took with this case, the judge had to face, and we have to face, some unpalatable realities about the circumstances in which, and the nature of, the brief sexual relationship between these two people. The offender did not groom this child in the sense that he corrupted her into a sexual relationship, and the two occasions when actual physical activity took place between them undoubtedly occurred with her willing consent.
- The basic problem in this case is that the law exists, not only to protect children from the baleful, damaging influence of adults with an unacceptable sexual interest in children, but also because the law acknowledges the reality that some children, even children as young as 11 years of age, need protection from themselves. When the child is only 11 years old, even when there is powerful mitigation — and there is powerful mitigation here — arising from the child's willing involvement without any influence from the offender himself in a sexual relationship, a non-custodial sentence simply does not vindicate the essential principle that children may indeed need protection from themselves.
- In our judgment, the circumstances in which a non-custodial sentence can possibly be appropriate when the man in question is an adult, even if a young immature adult, who starts or continues serious sexual activity with a child he knows to be 11 years old, so that there is no excuse whatever in ignorance, must be vanishingly rare. The protection of children for themselves is the pre-eminent consideration in the sentencing decision. Although the length of any sentence must reflect all the realities of the individual case, not simply the label attached to the offence, the length of the sentence must reflect the mitigation, but that a custodial sentence must be passed, save in those vanishingly rare cases, seems to us to be inevitable.
- This was not one of those vanishingly rare cases. We have reflected on all the circumstances, including the fact that the offender has now started to serve the community order which was imposed on him by Judge Atherton. But reflecting on all these matters, we have come to the conclusion that this sentence passed by Judge Atherton should be quashed and that we should replace it with a sentence of 2 years' imprisonment.
- To that extent this appeal will be allowed. The reasons for reaching that conclusion should be apparent from our judgment.
- We have to order that the sentence should take effect from today's date and we so order, and the offender must surrender within — how long, Mr Aylett; 24 hours?
- MR AYLETT: My Lord, yes.
- SIR IGOR JUDGE, P: Must surrender within 24 hours to the police station --
- MR NICHOL: At Bury in Greater Manchester.
- SIR IGOR JUDGE, P: Thank you very much. At Bury at Greater Manchester.
- MR AYLETT: Thank you, my Lord. Might it not be the case that the sentence should begin to run from the date when the defendant surrenders, in case he does not surrender today?
- SIR IGOR JUDGE, P: That is a fair point and we accept that. We also note that the days he spent on remand at the earlier stage should count towards the time he will serve. Thank you, Mr Aylett.
- MR AYLETT: Thank you. Seven days.
- SIR IGOR JUDGE, P: In the circumstances of this case, the sentences will be 2 years concurrent on the assault and attempted rape charge, and six months concurrent on the grooming charge.
- MR AYLETT: Thank you.
- SIR IGOR JUDGE, P: Thank you very much. Do either of you know the precise number of days?
- MR AYLETT: Yes. He would have been remanded on the 2nd and sentenced on the 8th, so that is seven days.
- SIR IGOR JUDGE, P: Do you agree, Mr Nichol?
- MR NICHOL: Yes, I do.
- SIR IGOR JUDGE, P: We shall record it as seven days. You have 28 days in which to achieve a correction.