England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice The Strand London WC2A 2LL
		24th February 2017

Friday 24^th February 2017

LORD JUSTICE SIMON: I shall ask Mr Justice Holroyde to give the judgment of the court.

MR JUSTICE HOLROYDE:

1. The provisions of the Sexual Offences (Amendment) Act 1992 apply to the offences charged in this case. Accordingly, no matter relating to any of the victims of the offences shall during her lifetime be published if it is likely to lead members of the public to identify her as a victim of that offence. This prohibition will continue unless and until waived or varied in accordance with section 3 of the Act.
2. This is an appeal, brought by leave of the single judge, against an extended sentence comprising a custodial term of four years' detention in a young offender institution and an extended licence period of four years.
3. The appellant was born on 31^st August 1997 and so is now 19 years old. It is necessary to summarise the sequence of relevant events. In June 2014, he committed the offence charged in count 2 of the indictment, assault of a child under 13 by penetration. At the material time, the appellant was aged 16 (nearly 17). His victim was just 12 years old. The circumstances, in brief, were that the appellant befriended that young girl via Facebook and encouraged her to meet him at the home of an uncle of one of his friends, which was close to her home. She did so. When she visited him for a second time, they began to kiss. He then put his hands inside her knickers, penetrated her vagina with his fingers, and caused her to masturbate him to the point of ejaculation. It is to be noted that for an adult offender (which the appellant was not), the maximum sentence for such an offence is life imprisonment.
4. The appellant was arrested. In interview, he admitted that he had kissed the girl, but denied that anything more had happened. Importantly, he was then released on bail and so was subject to bail at the time of the further offences to which we must now come.
5. In the months of March and April 2015, when the appellant was 17 years old but approaching his 18^th birthday, he committed two offences of sexual activity with a child, contrary to section 13 of the Sexual Offences Act 2003. The first in point of time was charged on count 8 of the indictment. It related to a girl aged 15 at the material time, whom the appellant contacted through Facebook and who eventually attended his house. Whilst she was there, he gave her two love bites, put his hand inside her knickers, and ultimately had vaginal intercourse with her. That was on 24^th March 2015.
6. On 15^th April 2015, the appellant committed a further similar offence. This was the subject of count 5 on the indictment. On this occasion, the girl was aged just 14. She, too, was contacted through Facebook and invited to the appellant's home. She went there thinking that, at most, they might kiss and cuddle. But kissing and cuddling quickly progressed once again to digital penetration of her vagina and then to full sexual intercourse, without any form of contraception.
7. Pausing there, each of those offences, contrary to section 13 of the 2003 Act, is within a category of offence which carries a different maximum sentence where the offender is aged under 18, rather than an adult. In each of these cases the maximum sentence for the appellant was one of five years' custody.
8. At almost the same time as he committed those two offences, the appellant also committed the offence charged in count 9 (stalking). He contacted a girl aged 15 via Facebook and invited her to his house. Unlike the others whom we have mentioned, she declined. This angered the appellant, who sent messages expressing his anger and saying that he would post pictures on Facebook and say that they were pictures of the girl concerned. This, indeed, he did. He posted on social media a video recording of a girl (not the complainant) masturbating, and he attached to that imagery the complainant's mobile phone number, together with a message which indicated, in effect, that she was available for sexual activity if anyone chose to contact her. The unfortunate girl subsequently received 25 to 30 calls from numbers which she did not recognise.
9. That offence was originally charged as an offence contrary to section 4A(1) of the Protection from Harassment Act 1997 of Stalking involving fear of violence or serious alarm or distress. Ultimately, the appellant pleaded guilty to the lesser form of that offence, which did not involve fear, alarm or distress. We do not know the precise circumstances in which that plea came to be offered and accepted, and therefore do not criticise. We do, however, record our surprise that such a plea was acceptable.
10. In relation to that offence, to which the appellant ultimately pleaded guilty, the maximum available sentence was one of only six months' custody. Unfortunately, that fact was not appreciated by anyone at the time. It was first noted by the customary vigilance of the Registrar's Office, for which this court is, as always, grateful.
11. On 30^th September 2015 these various matters came before the court. The appellant pleaded not guilty to all charges.
12. At a further hearing a month later, on 30^th October 2015, he asked to be re-arraigned on counts 2 and 5, and he pleaded guilty. By an amendment of the indictment on that day, counts 8 and 9 were added, and the appellant pleaded guilty to those offences. Other charges against him were left to lie on the file in the usual way.
13. On 13^th January 2016 the appellant was sentenced, by which time he was 18 years old. The court heard that he had a number of previous convictions, mainly for offences of dishonesty, but none for sexual offences. That is a feature of the case to which Mr King, who has appeared on the appellant's behalf today, particularly invites our attention.
14. There were before the court two pre-sentence reports, from which it emerged that, despite his youth, the appellant is the father of a child who was born when the appellant was aged 15. There was also before the court a psychological report based on an assessment of the appellant on 19^th October 2015. This, too, is an aspect of the case to which Mr King particularly invites our attention. It sets out the limited intellectual functioning of the appellant, which is expressed as being such that he is "most likely functioning at the age of someone who is at least five to eight years younger" than his chronological age. The report also indicates the emotional immaturity of the appellant.
15. All these matters were considered by His Honour Judge Driver QC in what was, on any view, a difficult sentencing exercise. In his sentencing remarks, he noted from the psychological report that:

"... the [appellant's] IQ is low, but it is not sufficient to amount to a disability but is close to that. He is functioning at a level five to eight years below his calendar age and has difficulties with interpersonal relationships and can become easily frustrated."

The learned judge indicated that he had taken into account the actual age of the appellant and the fact that he was immature for his age. He expressed the view, with which this court agrees, that those were not factors which reduced or controlled the level of his dangerousness or risk.

16. The learned judge considered the Sentencing Council's Definitive Guideline on Sexual Offences and on Sentencing Young Offenders, and Part 7 of the earlier Sentencing Guidelines Council guideline in relation to counts 5 and 8 on the indictment. In his sentencing remarks, he indicated that he had come to the following conclusions. So far as count 2 was concerned (the offence contrary to section 6 of the Sexual Offences Act 2003), the judge said that it was a serious offence by reason of its planning, the fact that it involved both digital penetration of the girl's vagina by the appellant and masturbation of his penis by the girl, and a significant and troubling age difference. For an adult offender, the guideline would indicate a starting point of four years' imprisonment, and a range of two to six years, this being a category 3B offence. The learned judge indicated that he would substantially reduce the adult guideline starting point, having regard to the appellant's age. He then made a further reduction of 25 per cent to reflect the appellant's guilty plea. He concluded that, if that offence had stood alone, the sentence would have been between two and two and a half years' detention in a young offender institution.
17. As to the two similar offences charged in counts 5 and 8, the learned judge found that these, too, were aggravated by the significant element of planning; they were aggravated by the fact that each involved full sexual intercourse without the use of contraception; and they were further aggravated by the fact that the appellant as on bail. At the time of committing those offences, the judge noted that the appellant was indeed under 18, but by less than six months.
18. The guideline starting point for a young offender in relation to each of those offences is one of a twelve month detention and training order, with a sentencing range of six to 24 months' custody. The learned judge took the view that in relation to each, bearing in mind the aggravating features of the offences, the appropriate sentence in the appellant's case would be 16 months' detention, reduced to twelve months to reflect the guilty pleas.
19. In relation to count 9, which the judge regarded as a serious offence of its kind and one which had caused very great distress, he regarded the appellant as being entitled to full credit for his guilty plea. He took a sentence for that offence of eight months' detention. That, as we have noted, was in excess of his jurisdiction. The maximum sentence is one of six months' custody.
20. The offences charged in counts 2, 5 and 8 are "specified" offences. The learned judge therefore considered the issue of dangerousness in the light of all the information which was before him. He said this:

"Those three sexual offences were committed in a period of about one year against three separate victims, all of whom were under 16 years of age. The last three offences to which the [appellant] has pleaded guilty were committed whilst he was on bail for a sexual act, which he has now admitted by his plea, on a 12 year old girl. His behaviour was persistent and determined. Although count 9 on the indictment is not itself a specified offence, it gives a good flavour of the [appellant's] character, including his determination and vindictiveness when thwarted in a sexual case."

21. The judge noted that the pre-sentence report indicted a high risk of sexual offending in the future. He concluded:

"In my judgment the pattern of offending and the information that I have about the [appellant] make me conclude that there is a significant risk of serious harm occasioned by the commission by the [appellant] of further specified sexual offences. He is, in my judgment, a dangerous young man."

22. The individual sentences which the judge had identified would, in principle, be made to run consecutively, the one with the other. Taking into account the overall criminality, the judge concluded that, on count 2, there must be an extended sentence comprising the custodial term and extended licence period which we have described. On the remaining counts, he passed sentences of twelve months' detention in a young offender institution for each of counts 5 and 8, and eight months' detention for count 9.
23. In the written grounds of appeal and in the oral submissions today of Mr King, it is submitted that the sentence passed on count 2 was manifestly excessive. Mr King emphasises that it was necessary for the learned judge to have regard not only to the young age of the appellant, but also to his immaturity and his intellectual limitations which caused him to operate in a manner less mature than would be expected of his chronological age. It is submitted that there was no evidence before the court that any of the victims had suffered particularly serious harm. Mr King emphasises, as we have said, that the appellant has no previous sexual offences on his record. He went on to submit that the appellant should not have been regarded as dangerous. Criticism is made in the written grounds of appeal of some of the contents of the pre-sentence reports as being factually incorrect, and of others as being unfairly prejudicial.
24. Accordingly, Mr King argues that the finding of dangerousness was wrong in principle and that the total custodial term was manifestly excessive, so that, by each of those routes, an extended sentence should not have been imposed.
25. This court has given anxious consideration to these submissions, conscious of the youth of the appellant and his evident immaturity. We bear those aspects of the case very much in mind. There can, however, be no doubt that at all material times he knew that he was doing wrong with girls who were significantly younger than himself, and he persisted in offending, even when he was on bail. We agree with the learned judge that, in principle, the repeat offending whilst on bail called for consecutive sentences. We also agree with the learned judge that, making every allowance for youth and immaturity, the sentences on counts 2, 5 and 8 could not have been less than two years, twelve months and twelve months' detention respectively.
26. So far as count 9 is concerned, bearing in mind the maximum sentence of six months' custody and the serious nature of the offence, we take the view that a sentence of not less than four months' custody, again to run consecutively, was unavoidable.
27. Mr King submits that the learned judge may have given insufficient weight to the important principle of totality. We are unable to accept that submission. It seems to us that, when every possible allowance is made in the appellant's favour, including for totality, there can be no complaint about the learned judge's conclusion that the custodial term could not be less than four years.
28. As to the issue of dangerousness, we take the view that the learned judge was plainly entitled to reach the conclusion he did. There was here repeated serious sexual offending against vulnerable young girls, characterised by an apparent inability on the part of the appellant to control his behaviour, and by his willingness to exert influence over younger girls to cause them to indulge his wishes. All those are factors which point to a significant risk of serious harm being caused to other young girls by further similar offending in the future. Even if we ignored those aspects of the pre-sentence reports which are criticised, the uncontroversial contents of those reports amply confirmed the finding of dangerousness.
29. For all those reasons, the principal submissions advanced by Mr King must, in our judgment, fail.
30. So far as count 9 is concerned, the learned judge fell into error and an unlawful sentence was imposed. We therefore quash the sentence of eight months' detention on count 9 and substitute for it a sentence of four months' detention. That will, as before, run consecutively to the sentences on counts 5 and 8, but concurrently with the sentence on count 2. All other sentences remain unaltered, with the result that the total sentence to be served by the appellant remains one of an extended sentence, comprising four years' detention in a young offender institution and an extended licence period of four years.
31. The appeal is accordingly allowed only to the limited extend of varying the sentence on count 9.