Green, R. v [2006] EWCA Crim 3294

Case No 200604583/A2[2006] EWCA Crim 3294
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Venue Royal Courts of Justice
Strand
London, WC2
WEDNESDAY, 6th December 2006
B E F O R E:
LORD JUSTICE KEENE
MR JUSTICE BEAN
Venue THE RECORDER OF BIRMINGHAM
(Sitting as a Judge of the CACD)
Between
R E G I N ACrown-v-
Between
NICHOLAS JOHN GREEN
Computer Aided Transcript of the Stenograph Notes ofA Merrill Communications CompanySmith Bernal Wordwave Limited190 Fleet Street London EC4A 2AGTel No: 020 7404 1400 Fax No: 020 7831 8838(Official Shorthand Writers to the Court)
MR R SHELLARD appeared for APPLICANT
J U D G M E N TDate 2006-12-06
[1]THE RECORDER OF BIRMINGHAM: On 31st August 2006 at Cardiff Crown Court, the appellant was sentenced to a total of 40 months' imprisonment for two offences. He had previously pleaded guilty in June, which was the earliest opportunity at which his pleas could sensibly have been entered. He was sentenced to 24 months' imprisonment for causing or inviting a child to engage in sexual activity and to 16 months consecutive for causing a child to watch a sexual act. He was refused leave by the Single Judge to appeal. He has renewed his application to this Court and we have granted him leave.[2]These were offences which were committed via the Internet over a period during 2005. At that time the appellant was aged 38 and the victim of these offences was aged only 12. She was a school friend of the appellant's teenage stepdaughter. They lived close by each other, and from a fairly early stage the appellant was aware of this.[3]The appellant got involved in a chatline on the Internet with the complainant. To start with the girl believed that she was in touch with another 13-year old, but she subsequently found out he was the father of her school friend. Contact over the Internet took place on about ten occasions. The appellant started to introduce sexual content into the conversation. A web camera was used so that they could see each during these conversations. On three or four occasions, at his encouragement, she exposed and rubbed her breasts to him via the web camera and also showed her vagina. That behaviour is the subject of count 1 on the indictment. He made a permanent record of one of these occasions on his computer.[4]In relation to count 2, he masturbated in front of the girl via the web camera. He also made a permanent record of this on his computer.[5]They ceased communicating with each other some 6 months before the offences were discovered, when the girl got into the appellant's car along with his stepdaughter. This was not the first time that this girl had exposed herself via the web camera. She had done so on a previous occasion but on that occasion with a boy of her own age.[6]Matters came to light when the police examined the appellant's computer, not in relation to these matters but other matters which were not proceeded with. In the course of that examination they found the images of this activity which had been made by the appellant.[7]When interviewed by the police he made no comment but it is right to say that after that, in conversations with the probation officer, he was completely candid and frank about his conduct. The appellant had only one old previous and dissimilar conviction which the judge rightly ignored and treated him as a man of good character.[8]He is a married man. He has three step children and his family are being supportive of him. The judge accepted that he showed genuine remorse and that the pre-sentence report demonstrated that he had some insight into his problems and a desire to overcome them.[9]Mr Shellard, on behalf of the appellant, argued that the totality of the sentence is too long and either the sentences should have been concurrent or the length of each should have been reduced.[10]In passing sentence, in order to identify the aggravating features of these offences,

the judge quoted from the pre-sentence report which stated as follows:

"...the length of time over which the offences took place and the context and content of the behaviour outlined in the witness statements suggests a pattern of manipulative and predatory behaviour on the part of the defendant to secure the compliance of his victim, together with a gross breach of trust in respect of the adult and child relationship."
Having quoted from the report in that way

the judge went on to say:

"Those are sentiments with which I entirely agree and are aggravating features in this case. You have accepted the inevitable, that a prison sentence must be passed in respect of these matters. The mitigating features are, firstly and importantly, your plea of guilty, which has avoided [the child] having to come and give evidence in this Court. It is apparent to me, not only from that fact but from the other material which is before me, that you do show genuine remorse for what you did. It is also, it seems, that you are prepared to seek help in respect of this problem. I also have regard to the background which is set out in that pre-sentence report, your lack of previous convictions of any relevance and also, looking at the two types of offences that I have to sentence you for, the question of totality of sentence. Taking all of those matters into account, had you contested this matter upon the basis of a plea of not guilty, taking into account the mitigating factors other than your plea of guilty, the sentence, in my judgment, would have been in the area of five years, 60 months. I reduce that by the appropriate third, discounting for the plea of guilty as well."
He then passed the sentence which we have specified.[11]Mr Shellard argues that the starting point which the learned judge says to reflect the whole of the conduct of 60 months (5 years) was too high. He points out that in the case of Millberry, the guideline case, it was said that 5 years is the starting point for an offence of rape with an adult. Of course it would not be a starting point for rape with a child of this age.[12]In our judgment, although the judge could have justified making the sentences consecutively, we believe it would have been better in this case reflecting as it did a course of conduct, if the judge had made the sentences concurrent. We do think that the result of making the sentences consecutive was that the totality of the sentence was too great.[13]We have been helpfully referred to the case of R v A, which was an unreported case, but the neutral citation of which is [2006] EWCA Crim 2103. We have looked at that case. As with many such cases there are facts which are more serious and facts which are less serious than in this case, so it does not help us enormously with reaching our conclusion, but we have considered it.[14]In our judgment, the total sentence which was justified on this man would have been a total sentence of 30 months' imprisonment. We consider that that total sentence would have been best achieved by passing sentences of 30 months concurrent on both counts 1 and 2. To that extent this appeal is allowed.