England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL
CRIMINAL DIVISION
IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice The Strand London WC2A 2LL
		20th February 2018

THE LORD CHIEF JUSTICE: I shall ask Mr Justice Nicol to give the judgment of the court.

MR JUSTICE NICOL:

1. On 10^th November 2017 in the Crown Court at Wood Green the appellant pleaded guilty to an offence of sexual activity with a child, contrary to section 9(1) of the Sexual Offences Act 2003 (count 2). On the same day he was sentenced by His Honour Judge Dodd QC to two years and three months' detention. The appellant accepted that the offence put him in breach of a suspended sentence order imposed by the Highbury Corner Magistrates' Court on 24^th August 2017. That suspended sentence order was for twelve weeks, suspended for 18 months. Judge Dodd activated that sentence in full and ordered that it should be served consecutively. No evidence was offered against the appellant on count 1 of the indictment (sexual activity with a child, in the form of oral sex) and a not guilty verdict was accordingly entered, pursuant to section 17 of the Criminal Justice Act 1967.
2. Having been convicted of an offence listed in Schedule 3 to the Sexual Offences Act 2003, the appellant was required to comply for ten years with the provisions of Part 2 of the Act, namely, notification to the police.
3. The instant offence is one to which the Sexual Offences (Amendment) Act 1992 applies. Accordingly, the victim of the offence, to whom we shall refer as "K" must not be identified in any report of these proceedings.
4. The facts of the offence were as follows. On 29^th August 2017 the appellant met K while they were both travelling on a bus in the London Borough of Haringey. K was in the company of a friend. It was accepted that the appellant and K had communicated via the social network site "Snapchat" beforehand. The three got off the bus at the same time. The appellant asked K if she wanted to have a "private chat". They both then went to a secluded area near a bin shed. The appellant asked K if she wanted to go inside the bin shed and she agreed. Her friend remained outside and close, but became concerned when she heard certain noises. She called the police. When officers attended, all three were still at the scene.
5. K was 13 years of age at the time. There was a dispute about the age of the appellant. He told officers at the scene that his date of birth was 11^th November 1997. He told his counsel that it was 19^th November 1997. Home Office records stated his date of birth as 19^th November 1996. Accordingly, he would have been either 19 or 20 years of age at the time of the offence. The judge sentenced him on the basis that he was "almost 20".
6. In her interview, K told officers that she had willingly joined the appellant in the shed and engaged in the sexual activity.
7. When the appellant was arrested, he said that the complainant was 16 and that they had met at school. He also said that he had "just had sex with [his] missus". He was interviewed later with an appropriate adult. The appellant later admitted that he knew the complainant was under 16. He said that they had engaged in touching and kissing, but denied having oral sex. Forensic examiners found evidence that the appellant had ejaculated while in the shed. In the particular circumstances of the case the Crown accepted the appellant's guilty plea to count 2 on the basis that the sexual activity had involved kissing and touching, not oral sex, and the touching had been over clothes.
8. The appellant had six previous convictions on two previous occasions. He pleaded guilty to possession of cannabis and theft from the person. On that occasion he was fined £120. On 24^th August 2017 he also received the suspended sentence order to which we have referred. That was imposed for battery, for using violence to enter premises, and for failure to surrender on two occasions. The suspended sentence order was for twelve weeks suspended for 18 months. He was also made subject to a rehabilitation activity requirement for 15 days, and a restraining order was imposed to last until 23^rd August 2020. Subsequent to the sentence imposed by Judge Dodd on 24^th January 2018, he was sentenced to a consecutive term of three months' detention for a dwelling house burglary and theft. Those offences had taken place on 16^th July 2017.
9. In passing sentence the judge said that the appellant would be sentenced on the basis that he had engaged in kissing and touching K on the thigh over her clothing. The judge did not dissent from counsel's agreement that in terms of harm and using the guideline of the Sentencing Council, this was a category 3 case: it was sexual activity with a child which did not involve penetration of the vagina or anus and did not involve touching or exposure of naked genitalia or naked breasts.
10. In terms of culpability, the Sentencing Council refers to two levels: A and B. B is where none of the features listed in A are present. The judge said that the offending came within A because of what the Sentencing Council refers to as "significant disparity in age". K was aged 13. The judge treated the appellant as almost 20. The appellant had fathered at least one child and possibly had another on the way. The judge regarded the differences in age as significant. He therefore treated the offending as a category 3A case, where the recommended starting point was 26 weeks' custody, with a range from a high level community order to three years' custody. The judge recognised that the appellant had pleaded guilty at the pre-trial preparation hearing. That had been on a basis which was now accepted by the prosecution. The judge said:

"So you are entitled to credit to an extent for that. And I measure that, or assess that, at 10 per cent."

11. The aggravating feature was that the offence had been committed so shortly after the suspended sentence order had been imposed. Indeed, it was committed only five days later.
12. The judge went on to say that he regarded this "at the top of the range for a category 3A offence". Whatever emotional difficulties the appellant may have had, he knew what he was doing when he took this young girl into a bin shed and engaged in sexual activity with her. The judge passed the sentence of two years and three months' detention and activated the suspended sentence order as we have described.
13. On the appellant's behalf Ms Sabato argues that the judge could not reasonably have concluded that there was a significant difference in the ages of K and the appellant, and so the judge should have assessed culpability as falling into category B, with the consequences that the starting point would have been a medium level community order and the range was between a low level community order and a high level community order.
14. Secondly, Miss Sabato submits that the judge chose a sentence (before giving credit for the guilty plea) which was too high.
15. Thirdly, she argues that it was not until the day that the appellant pleaded guilty that the prosecution distinguished between the different forms of sexual activity, added count 2 to the indictment and agreed to accept a guilty plea to count 2, and a not guilty plea to count 1. In her Advice on Appeal, Miss Sabato says that the judge ought to have given the appellant full credit for his guilty plea, not what she describes as "25 per cent".
16. The Sentencing Council's guideline is not to be interpreted like a statute. The sentencing judge is required to make a judgment as to whether a case comes within a particular category or band. That said, even if it was open to the judge to regard the difference between a 13 year old and a 19 year old as "a significant disparity in age", on any reckoning it only just satisfied that test. That feature should have been taken into account when it came to settling on a sentence before credit for the guilty plea within the Council's range.
17. There was a second reason for choosing a sentence lower in the range. The judge said that he would sentence on the basis that the sexual activity had taken the form of kissing and touching K's thigh over clothing. The judge was quite right that this offence applies to a child such as K, irrespective of consent, because a 13 year old is considered to be insufficiently mature to give informed consent. However, the sexual activity in question was at the lowest level.
18. Here there is some ambiguity as to what sentence the judge did have in mind before credit for plea. Ms Sabato's Advice proceeds on the basis that he did indeed take three years (the top of the range). If she is right about that, then even taking the appellant's recent conviction into account, it is very difficult to justify the judge's choice, given the two factors to which we have referred.
19. The alternative is to extrapolate from the judge's comment that he was giving ten per cent credit for plea and that he had a sentence of 27 months in mind had there been a trial. If this alternative is correct then, even so, with respect to the judge, his sentence was manifestly excessive. This was not an offence which justified a sentence (assuming a trial) of anything like that length.
20. However, if this second alternative is correct, there is a second objection to the sentence passed, namely, that it gave insufficient credit for a guilty plea which was entered at the pre-trial preparation hearing. We do not accept Ms Sabato's submission that a guilty plea at that stage would have justified full credit. Even before the indictment was amended, the appellant could have pleaded on an articulated basis, or indicated openly a willingness to do so.
21. The judge was confronted with a difficult exercise. Taking the instant offence on its own (but bearing in mind the appellant's recent receipt of a suspended sentence order), the custody threshold may well not have been crossed.
22. Undoubtedly, though, the instant offence did put the appellant in breach of the suspended sentence order. Since the breach had occurred so soon after its imposition and before the appellant had undertaken any of the rehabilitation requirement, there was no choice but to activate the suspended sentence, and in full. In those circumstances a non-custodial sentence for the instant offence was not really an option.
23. We have no doubt that the judge's sentence was manifestly excessive. Accordingly, we will quash the sentence of two years and three months' detention. We will substitute a term of twelve weeks' detention, to run consecutively to the activation of the suspended sentence order.
24. Because of the alteration of the sentence, the notification period under the Sexual Offences Act 2003 will change. Since the term that we substitute is less than six months, the notification requirements will continue for seven years.
25. The appellant is also reminded that the restraining order imposed by North London Magistrates on 24^th August 2017 will remain in force until 23^rd August 2020.
26. Our task is to deal with the appeal against sentence. Whether or not any action is taken in respect of the appellant's immigration status is for others to decide.
27. However, to this extent the appellant's appeal succeeds.
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