MS, R. v [2008] EWCA Crim 600

[2008] EWCA Crim 600Case No 200706072/A9
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Venue Royal Courts of JusticeDate Thursday, 28th February 2008
Strand
London, WC2A 2LL
B e f o r e:
LORD JUSTICE THOMAS
MR JUSTICE JACKSON
MR JUSTICE COULSON
Between
R E G I N ACrownv
Between
M.S.
Computer Aided Transcript of the Stenograph Notes ofWordWave International LimitedA Merrill Communications Company190 Fleet Street London EC4A 2AGTel No: 020 7404 1400 Fax No: 020 7831 8838(Official Shorthand Writers to the Court)
Miss C Eadie appeared for Appellant
J U D G M E N T

Mr Justice Jackson: This is an appeal against sentence brought with the leave of the single judge.

[2]The facts giving rise to this appeal are as follows. On 25th May 2007 the appellant, a man aged 27, entered a social networking site called Face Party. He made contact with another user who gave the name of Helen and asserted that she was a 14 year old school girl. Helen was in fact an undercover police officer. Over the next 17 days the appellant chatted with Helen on the internet using MSN Messenger. The conversations became sexual in nature and the appellant outlined his fantasies.[3]On 5th June Helen supplied her mobile number to the appellant. Thereafter there were parallel communications by text message and over the internet. The appellant and Helen agreed to meet. Helen sent a text message asking what the appellant wanted to do. The appellant replied, according to the transcript of the text message:
"Anything you want to, I just want to meet you cos I do like you im not mucking you about and if you like me then its cool we can meet get to know each other in person maybe have a drink go for a walk what you want to do can you answer my questions please xx I only asked if you were scared cos your asking what we gonna do."
[4]In an exchange of text messages on 7th June the appellant proposed that they "go all the way". He reassured Helen that it would not be painful. The communications continued in this vein. The appellant agreed to meet Helen outside a Starbucks coffee shop at Vauxhall Bridge station on 12th June. The appellant duly attended the rendezvous where he was arrested by police officers. The appellant was interviewed that evening but replied "no comment" to all questions.[5]On the basis of those facts the appellant was charged with attempting to meet a child following sexual grooming contrary to section 1 of the Criminal Attempts Act 1981. The substantive offence which the appellant would have committed if Helen really had been a 14 year old girl was an offence under section 15 of the Sexual Offences Act 2003.[6]The appellant pleaded guilty at the first opportunity before His Honour Judge Dodgson at Southwark Crown Court. On 31st October 2007 His Honour Judge Rivlin QC sentenced the appellant to 30 months' imprisonment. Judge Rivlin also made a number of orders banning the appellant from contact with children under the age of 16.[7]The appellant now appeals against sentence essentially on the ground that the term of imprisonment imposed is too long. The principal argument advanced both in writing and orally by counsel this morning is that the sentence imposed after one takes into account full credit for the plea is outside the guideline. If one looks at the definitive guidelines published by the Sentencing Guidelines Council for offences of this nature it can be seen that the sentencing range is one to four years' custody and the starting point is two years' custody if the victim is aged 13 or over but under 16. Counsel makes the point that the victim in this case, as she appeared to be, was aged 14 which put the assumed victim in the middle of the bracket for the type of the offence being considered by the court.[8]Further arguments which have been urged both in writing and orally are that there are no aggravating features present in this case which are not inherent in the offence itself. There is an entitlement to full credit for the plea of guilty at the first opportunity. The applicant is a man of previous good character. Contrary to certain observations made by the judge, the fact that the applicant used internet cafes to communicate with the victim is not part of an endeavour to escape detection. It was because he did not have a computer at home. The offence lacked sophistication because the appellant did not conceal his identity; he gave his true name and work address.[9]A further point mentioned in writing, although not pursued with any force today, is that the actual offence could not be committed because in truth there was no school girl aged 14 whom the appellant might have met at the rendezvous.[10]In our view, there is force in the submission that, having regard to the guidelines published by the Sentencing Guidelines Council, the sentence imposed was too long. This appears to be an offence which falls for all practical purposes right in the middle of the guideline and there is no clear reason for moving above the starting point of two years' custody indicated in the guideline. No reason for moving above that starting point is set out in the judge's sentencing remarks. Of course, the grooming of children for sexual purposes is a serious offence. It is rightly accepted on behalf of the appellant that a prison sentence is inevitable.[11]Nevertheless, in all the circumstances, one cannot justify moving above the starting point of two years recommended by the Sentencing Guidelines Council. The mitigating factors here are principally the prompt plea of guilty and that makes it appropriate to move downwards from the starting point by one third which is a period of eight months. In the result, therefore, the sentence of 30 months' imprisonment will be quashed and there will be substituted a term of 16 months' imprisonment. The other orders made by Judge Rivlin must stand. Accordingly, this appeal is allowed to the extent indicated.

Cited in 1 later judgment