Ardener, R. v [2006] EWCA Crim 2103

Case No 200602137/A5[2006] EWCA Crim 2103
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Venue Royal Courts of JusticeDate Wednesday, 16th August 2006
Strand
London, WC2
B E F O R E:
LORD JUSTICE GAGE
MRS JUSTICE DOBBS DBE
HIS HONOUR JUDGE METTYEAR
(Sitting as a Judge of the Court of Appeal Criminal Division)
Between
R E G I N ACrown-v-
Between
TONY ARDENER
Computer Aided Transcript of the Stenograph Notes ofSmith Bernal Wordwave Limited190 Fleet Street London EC4A 2AGTel No: 020 7404 1400 Fax No: 020 7831 8838(Official Shorthand Writers to the Court)
MR H VASS appeared for APPELLANTMR C MORGAN appeared for CROWN
J U D G M E N T

LORD JUSTICE GAGE:

This

[1]appellant, Tony Ardener, is a young man aged 26 and of hitherto good character. On 9th February 2006 at Peterborough Crown Court he was convicted of two offences contrary to section 8 of the Sexual Offences Act 2003, being sexual activity with a child. He was sentenced in respect of those two offences to four years' imprisonment on count 1 and three years' imprisonment on count 2. The judge also made a Sexual Offences Prevention Order to last for ten years with a condition that he be not alone with any female under the age of 16 without appropriate supervision for a period of ten years. He was also disqualified for life from working with children. In addition, he had to register under Schedule 3 of the Sexual Offences Act 2003.[2]He appeals against his sentence by leave of the single judge.[3]The facts are as follows. The complainant was a young girl aged 12 called Emma. In January 2005 her parents contacted the police after they had been informed that Emma had received a large number of text messages from the appellant who was then aged 24. Some of the messages were of a sexual nature.[4]Emma was spoken to and subsequently the subject of video interviews. She said that she had attended judo classes two days a week since March 2004. One of the classes was run by the appellant and in the other he assisted in teaching judo. Emma said she and the appellant had not been close at first, but when she began to be bullied at school she turned to the appellant for advice. At first there were single e-mails and texts exchanged between the two, but by December 2004 there was a large increase in messages between them. Emma said that since 26th December 2004 the texts had become of a sexual nature. She described one of them in which the appellant said he wanted to be "her first" which she took to mean that the appellant wanted to be her first sexual partner. She also disclosed a message in which the appellant asked her to get into bed with him when he was naked. In subsequent messages there were references to masturbation in oblique terms.[5]On 14th January 2005 the appellant was arrested. Mobile telephones and computers were seized. When interviewed, the appellant accepted that he had sent text messages of a sexual nature to Emma. He said he met her through judo classes. He regarded her as a depressed and strange child. He said that he knew she was aged 12. He said that in late September to November 2004 Emma disclosed in e-mails that she had been bullied and said that she wished to kill herself. His replies were an attempt to help her with her personal problems. He said that text messages from Emma increased in December 2004.[6]He said that on Boxing Day 2004 he had been drinking when messages of a sexual nature were received by him from Emma. He replied with similar content. Emma asked him to be "her first" and he admitted that he had replied back "of course I will be your first". He said that it was stupid. He was drunk. He had no intention of following this through. He denied asking her to get into bed naked with him.[7]It is accepted in this appeal on his behalf that the jury by its verdict must have found that the appellant introduced this topic. It is also accepted on his behalf that this was clearly an allusion to Emma losing her virginity.[8]The appellant admitted sending Emma a message asking for a photograph of her scantily dressed. He said this was sent to her in error. The message had been meant for his girlfriend. He said that he continued to text Emma as he did not want to ignore her because she was having problems. He had not thought to protect himself and make someone else aware. He thought that Emma had been fantasising about him, and this is when he knew he had gone too far, and he signed his text message with kisses. He denied that he had ever intended to commit any physical sexual act with Emma.[9]There was before the sentencing judge a pre-sentence report. He is, as we have said, a man of hitherto good character. The pre-sentence report indicated that the appellant believed that he was only guilty of naivete rather than a sexually motivated offence. It did not occur to him that the victim might be vulnerable to the attention of an older man. The author of the report said that the appellant had little understanding of the consequences for the victim. He portrayed himself as someone with only the most honourable intentions and denied any intention of sexual contact with the victim. The author of the report said that there was a high risk of re-offending and if he did re-offend there might be a substantial risk of harm.[10]Before the court also were a number of character testimonials which spoke highly of the appellant, saying he was a young man of exemplary character.[11]In sentencing him the sentencing

judge referred to the facts of the offence in the following way:

"You were in a position of trust. You had been trained in child protection, as I have seen from the pre-sentence report. You, in my judgment, encouraged the sexual discourse between the two of you. Though it did not persist for the period of time that one sees in the case of Hinton Smith nevertheless it persisted over several days, in particular late at night to the early hours of the morning and in my judgment it was clearly for your own sexual gratification. You clearly were aware that she was becoming emotionally attached to you because of the exchanges. They continued in my judgment in the hope or expectation of some form of sexual activity. I know that she said in evidence that you never asked to meet her, that was the suggestion that was put to her. She said: 'I can't remember if he asked', but the messages suggest there was in your mind a hope or expectation. What is perhaps worse about this is this; Emma insisted that had you got it out of her, I quote: 'That you would be her first, i.e. her lover, rather than her boyfriend'. That was a consequence of you and she discussing her sexual life. It was suggested to her that she was never going to have sex with you but she said she did not know, that was her evidence. I repeat, there was no meeting, no sex took place but the messages, of course, give considerable cause for concern."

The judge went on later in his sentencing remarks to say:

"To suggest that there should be penetration, though I said earlier perhaps could not be distinguished from the second count, I think it is probably wrong to conclude that. It seems to me that in respect of count 1 there should be a sentence of four years' imprisonment. In respect of count 2 there should be a sentence of three years' imprisonment. Both sentences will be concurrent."
[13]He also made the Sexual Offences Prevention Order to which we have referred and to which we shall return.[14]In grounds of appeal, amplified in the advice and argument before us today, Mr Vass makes a number of points. Firstly, it is submitted that the offending was of short duration, a period of some ten days. Secondly, there was no actual physical contact between the appellant and Emma. Thirdly, the fact that the contact was initiated by the complainant in the first instance was a matter to be taken into account, although, as we have already said, it is accepted that by the jury's verdict it must have concluded that the sexual nature of the text messages was initiated by this appellant. Fourthly, the relationship was nipped in the bud. It is true, it is accepted, that the appellant did not desist of his own volition, but there was a long way to go before any likelihood of the incited activity taking place. Fifthly, it is accepted that there was a breach of trust element, but this was not a case of him being a primary school teacher abusing a child in his care. He was a judo instructor and the contact was initiated by the complainant at a time when no classes were taking place. Sixthly, it is a fact that the appellant had been offered by the police authorities a caution. He refused this because it would inevitably have meant the loss of his job. It is submitted that this is some indication, at any rate initially, of the authority's view of the seriousness of his offending. Seventhly, and lastly, reference is made to the fact that he was only 24 at the time and at that time a man of impeccable character. The convictions were for him catastrophic and meant inevitably the loss of his career as a teacher and as a judo instructor. In all the circumstances, it is submitted that the sentences were too long.[15]Mr Morgan on behalf of the prosecution has assisted the court with the facts of the matter and has placed before the us a number of decisions of this court, and, in addition, a recent advice from the Sentencing Advisory Panel.[16]As is apparent from the sentencing remarks, to which we have referred, the judge was referred by counsel to the case of Rv Hinton Smith [2005] EWCA Crim 2575. In that case the court dismissed an appeal against an extended sentence of five years, being two years' custodial and three years' extended licence period pursuant to section 85 of the Powers of Criminal Courts (Sentencing) Act 2000 for two counts of incitement. There was also a consecutive sentence of 12 months for offences of possession of indecent photographs of a child.[17]The two counts of inciting a child to engage in sexual activity in that case involved incitement by means of text messaging. The victim was aged 14 and the appellant 35. The acts which were alleged were an attempt to persuade the victim to perform acts of masturbation on the appellant and full sexual intercourse. As we have said, for these counts the sentences were two years with a three year extension. There were also counts, again as we have said, of making indecent photographs of a child for which the appellant received a consecutive sentence of 12 months.[18]In some senses the facts of that case were more serious than the facts in this appeal, but in Hinton Smith the appellant pleaded guilty. There is also no suggestion in the judgment of the court that the custodial element of two years for the two counts of incitement represented a guideline for other such cases. The court simply dismissed the appeals.[19]Having looked at that decision and at the other decisions which have been placed before the court, in our judgment sentencing in cases such as this do present difficulties for the sentencing judge. The facts will vary enormously from case to case and in our view citation of authorities will not always assist.[20]In this appeal, having considered all the mitigating factors to which we have referred and have been placed before us on behalf of this appellant, we have reached the conclusion that the sentence passed by the judge was longer than it need have been for this appellant, a young man of good character, in which the activity was carried out over a limited period of time. In our judgment, the total sentence ought to have been, and we will make it such, two years in respect of count 1. We quash the sentence of four years in respect of count 1 and therefore substitute a sentence of two years. So far as count 2 is concerned, we quash the sentence of three years and for it substitute a sentence of 21 months.[21]We also conclude that the Sexual Offences Prevention Order made by the judge was too imprecise. We shall quash that order and for it substitute the following[22]That order to start from today and to last for a period of ten years. In all other respects the orders made by the judge will remain in place. To that extent, and for those reasons this appeal is allowed.[23]MR MORGAN: My Lord, as a consequence of the total sentence coming down to two years the period under which he is required to notify is also reduced.

LORD JUSTICE GAGE: Yes, what is it now, ten years?

[25]MR MORGAN: Ten years.

LORD JUSTICE GAGE: Yes. Well, we vary -- I should have said we vary the requirement to register to a period of ten years.

[27]MR MORGAN: Obliged.

LORD JUSTICE GAGE: That follows automatically, does it not, in any event without the court having to specify it. Thank you very much both of you for your help.

order

"The appellant shall not, without the order of a judge exercising jurisdiction under the Children Act 1989: (1) communicate with any child under 16 years of age in internet chatrooms; (2) communicate by text or telephone with any child under 16 years of age; and (3) be alone with any child under 16 years of age."

Cited in 1 later judgment