England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice Strand London, WC2A 2LL
		4th March 2010

1. MR JUSTICE DAVIS: The applicant is now aged 21. On 31st July 2009, at the Crown Court at Exeter, he pleaded guilty to five counts of sexual activity with a child, and on 23rd September 2009 he was sentenced by His Honour Judge Wildblood QC to four and a half years' imprisonment on each count concurrent. (We would add that, given his age at the time, that strictly should have been expressed as detention.) In addition, 154 days spent on remand in custody were directed to count towards the sentence.
2. This application has been referred to the full court by the Registrar. We grant leave and therefore this is to be treated as an appeal.
3. The background facts are these. Counts 3, 4 and 5 on the indictment related to a victim who may be styled "Z". She was just 13 when she met the appellant and a relationship developed which lasted from around the middle of August to the middle of September 2008. According to Z, the two of them had full intercourse on four occasions at the applicant's house. She said that he would kiss and cuddle her, there was no oral sex, they would then have full sexual intercourse. There was some debate as to whether or not contraception had been used, but the judge sentenced on the basis that it had been. On one occasion Z went to the school nurse for a pregnancy test, which turned out to be negative. She said that the appellant knew her age. Matters came to light when she told school friends. Her mother was then told and the police were in due course contacted.
4. On 6th October 2008 the appellant was interviewed. He said that he had gone out with the victim. He said that they had kissed and cuddled, but they had never undressed in front of each other and there had been no sexual relationship. The appellant therefore lied in the course of that interview.
5. During the course of that interview Z in fact referred to another girl, who may be called "K", as someone who also was friendly with the appellant, and on 13th November 2008 K herself was video interviewed. She then said that she had had full sex with the appellant on the May bank holiday weekend in 2008. She would have been aged 14 at the time. She said they went to his house and lay on the bed. She thought that they were just going to kiss and cuddle, but he got undressed, removed her knickers and got out a condom. She was uncertain about having sex and said, "I don't know", but went on effectively to consent and they then had full sexual intercourse. It seems therefore that on this occasion it may be said there was some degree of coaxing on the part of the appellant.
6. When interviewed on 21st November 2008, the appellant gave a prepared statement and then largely went "No comment". He did say that he had never had a relationship with her and had never had sex with her, so again that was false.
7. Then as to the final count, count 6, early in March 2009 the police received information that a third girl, "C", had been involved with the appellant. She was interviewed on 8th April. She said that she had met him in September 2008, he bombarded her with text messages, such as "I love you", "Will you marry me?" and "I want to fuck you", and they started to meet. She was 14 at the time. During half-term in February 2009 (whilst, it may be noted, the appellant was on bail in respect of the previous matters) she went with two other 15 year olds to the appellant's home in Honiton. The victim, C, and the appellant went to his bedroom. The other two girls told the police that they heard sounds consistent with sex taking place. C herself said that they had had full sex. She said the appellant wore a condom. When asked how she felt about it, the victim said that she was fine about it.
8. The appellant was interviewed on 21st April 2009. He said that he had dated the victim and that he knew that she was aged 14. He admitted kissing and cuddling her. She had visited his house during the February half-term. When her account of what had occurred was put to him, he remained silent.
9. The appellant has no previous convictions. Before the sentencing judge, as before this court, were reports. A pre-sentence report indicated, in effect, that the appellant knew that what he was doing had been wrong, although how much appreciation of the wrongdoing there really was perhaps was open to debate. The pre-sentence report considered that, because of the appellant's mental and emotional immaturity, there was a strong indication that he was attracted to girls much younger than himself.
10. The pre-sentence report had referred, as indeed did the sentencing judge, to a psychologist's report prepared by Dr Lyle dated 2nd September 2009. That report made a full assessment of the appellant. Amongst other things, this is said:

"In terms of intellectual ability, Dean is really far closer in mental age to younger children. Working back from the IQ figure, I would estimate his mental age of being between 9 and 10 years.

Dean seems to have had some understanding that sex with under-age children was wrong, but had difficulty in explaining why. I do not think that he appreciated the full implications of his behaviour. People with this degree of Learning Difficulty have problems in weighing the long-term consequences of what they do against the short-term advantages of a particular course of action. Dean, however, seems to have been very chastened by the consequences of his behaviour and I would think that there is very little likelihood of this sort of offence being repeated."

11. Mr Duval, appearing on behalf of the appellant, accepts that a custodial sentence cannot be said to be wrong in principle, whether taking the counts individually or cumulatively. He acknowledges that there are aggravating factors in this case, not least in that they were three separate victims being some six years younger than the appellant himself. Moreover, he acknowledges that it is a particularly serious aggravating factor in the context of a case such as the present that the final offence was committed whilst the appellant was on police bail. But Mr Duval places emphasis on the very troubled personal background of this particular appellant. He draws attention to the reports, including the report of Dr Lyle and a more recent probation report which has since been obtained. Mr Duval emphasises what is recorded as being the intellectual and emotional immaturity of the appellant, and the broad equation in intellectual terms of him having the intellectual capacity of a ten year old. Mr Duval goes on on to submit that, given also the early plea, a sentence of four and a half years in total was too long. A concern is also expressed as to the effect of detention on this particular appellant given his personal circumstances: although in the event the reports would seem to indicate that he is coping thus far whilst in custody. Mr Duval goes on to submit that at all events this is a case in which appropriately compassion can be shown by reducing the sentence.
12. This is by no means an easy matter. We would pay tribute to the sentencing judge, who went through the matter in detail and with care. He had full regard to the background facts, correctly identified the aggravating factors and the mitigating factors and fully assessed the reports, including the report of Dr Lyle. He pointed out that he might just as easily have imposed consecutive sentences in respect of the three complainants as the concurrent sentences which he ultimately imposed. We would also like to pay tribute to Mr Duval, who has advanced the argument on behalf of the appellant today extremely skilfully and cogently.
13. Having considered all the points that Mr Duval has made, we do not think that this is a sentence which can be criticised as excessive. As we have said, the judge went through the matter very carefully. True it is that this appellant has a significantly troubled background. True it is that he has a significant level of intellectual impairment and can be styled as emotionally very immature. The fact remains that he knew what he was doing and he knew that what he was doing was wrong. He lied in interview, which connotes his appreciation that he had done wrong, and then went on, on the final count, to commit this further offending notwithstanding that he was on police bail. It must not be overlooked that notwithstanding that these three girls ostensibly may have seemed to consent, harm can be caused to young girls by this kind of conduct; that is precisely why this particular statutory offence exists. We do not think, having regard to all the circumstances, that this sentence is one with which this court should interfere. Thus, although we have granted leave, the appeal itself is dismissed.