Edwards, R v [2009] EWCA Crim 132

Case No 2008/06011/A8[2009] EWCA Crim 132
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Venue Royal Courts of JusticeDate Tuesday 20 January 2009
The Strand
London WC2
B e f o r e:
THE LORD CHIEF JUSTICE OF ENGLAND AND WALES
(Lord Judge)
MR JUSTICE PITCHFORD
and
MR JUSTICE RODERICK EVANS
Between
R E G I N ACrown
ATTORNEY GENERAL'S REFERENCE No. 67 of 2008
UNDER SECTION 36 OF
THE CRIMINAL JUSTICE ACT 1988
- v -
Between
SHARON EDWARDS
Computer Aided Transcription byWordwave International Ltd (a Merrill Communications Company)190 Fleet Street, London EC4ATelephone No: 020-7421 4040(Official Shorthand Writers to the Court)
Mr S Denison appeared for Attorney GeneralMiss D Sherwin appeared for Offender
J U D G M E N TTuesday 20 January 2009THE LORD CHIEF JUSTICE:
[1]This is an application by Her Majesty's Attorney General under section 36 of the Criminal Justice Act 1988 for leave to refer to this court for review a sentence which she considers to be unduly lenient. We grant leave. The sentence was one of twelve months' imprisonment suspended for two years. It was passed by the Recorder of Middlesbrough (His Honour Judge Fox QC) in the Crown Court at Teesside on 13 October 2008.[2]The offender is Sharon Edwards. She is now aged 40. She was born on 9 September 1968. She is a woman of good character.[3]On 30 May 2008 she pleaded guilty to four offences of sexual activity with a child, contrary to section 9(1) of the Sexual Offences Act 2003, having indicated her willingness to plead guilty to these offences at a preliminary hearing on 3 April 2008.[4]The child in question was a boy who was just 14 years old when the first offence took place. He was the offender's son's best friend.[5]The offender had pleaded not guilty to one offence of being concerned in the supply of a controlled drug of Class A. That matter was adjourned for trial. However, when it was listed for trial an alternative count was included in the indictment and she pleaded guilty to offering to supply a controlled drug of Class A contrary to section 4(1)(b) of the Misuse of Drugs Act 1971. That plea was accepted by the Crown. On that day (13 October) she was sentenced to twelve months' imprisonment on each count, suspended for two years, with a two year supervision requirement.[6]In brief summary, the offender admitted that she had had a sexual relationship with the 14 year old boy. On two occasions they had sexual intercourse together and on two further occasions he penetrated her mouth with his penis. On the last occasion (18 January 2008) he found some cocaine. In the course of a conversation that night the offender offered to supply him with cocaine.[7]The judge's reasons for his decision are encapsulated in his brief sentencing remarks. He said this:
".... you are 39 years of age. You have never been in trouble before. You have been a very unhappy lady for a very considerable time, and this mature 14 year old boy seduced you, not you him, both sexually and so far as drugs are concerned. Of course you had a responsibility as an adult to reject his advances in both those regards, but in the circumstances which obtained at the time, and of which I have read in detail in the psychiatric report, I can regard this case as an exceptional one and suspend the inevitable prison sentence."
[8]The assertion that the boy seduced the offender, whether in relation to sexual activity or drugs, is challenged by the prosecution. We must examine the evidence.[9]The victim "A" was born on 18 October 1993. He lived at home with his mother and a younger brother. His parents had separated four years previously. He is a tall boy, 6ft 1in tall. That said, he was still using a dental brace and he was being treated for acne. More important, he was a virgin. Before his relationship with the offender began he had not experimented with drugs.[10]The offender was 39 years old when she committed these offences. She and her husband had been together for 23 years. They had been married for nine years. They had two sons aged 13 and 10. Her husband had been at school with A's mother. The two families knew each other very well. They lived in the same street. The adults baby-sat for each other's children on a regular basis. A was the best friend of the offender's older son "J" and he spent a lot of time at the offender's home. The offender's husband had become something of a father figure to A after the separation of his parents.[11]The marriage between the offender and her husband was unhappy. She had briefly separated from him in 2006 when she had an affair, but she returned to live with him to try to make the marriage work for the sake of the children. However, as the medical report (which was before the sentencing judge and is before us) shows, by October 2007 she was drinking to excess and there were occasions on which she would take cocaine. Her parents, whom she had been used to seeing regularly, had emigrated. Her husband had become convinced that she was having another affair. When he confronted her with it, she denied it.[12]The husband had noticed that A seemed to have something of a crush on the offender and spent a lot of time at their home. He also noticed that his wife sent A a great number of text messages. He asked her about it, but she laughed it off saying that they were "just having a laugh". Unsurprisingly, it did not occur to her husband that she was having a sexual relationship with A.[13]By January 2008 the husband noticed that the offender was staying up late and using the MSN Messenger Service to communicate with somebody. She started to sleep in a separate bedroom.[14]On 18 January 2008, which happened to be an evening after the offender and A had had sexual intercourse and he had found cocaine in her premises, her husband changed the settings on their home computer so that it saved the MSN conversations. The following morning he checked the saved conversations that the offender had had the previous evening. On reading them he realised that the offender was indeed having a sexual relationship with A. He immediately telephoned A's mother and told her what he had found. Unsurprisingly, she was shattered at the news.[15]A's mother decided that she should speak to A about it. When she did so, he became distressed and cried hysterically. He said that he was sorry, that he knew it was wrong but that he did not know how to stop it. She decided to inform the police. When she did so, A went to his bedroom and in an emotional outburst said that his life was over and he might as well die now.[16]When the offender returned home later that morning her husband confronted her with the text messages. To begin with she denied that she had had an affair with A and she stormed out of the house. But later that day she admitted to her husband that it was true.[17]A was interviewed by the police on 19 January, the same day. He said that he had started texting and MSN messaging with the offender in September 2007 when he was still 13 years old. He said that he had developed a crush on her and that he had told her about it. They would send each other text messages fifty times a day. He said that they had first had sexual intercourse shortly after his fourteenth birthday at the offender's sister's home when the sister was away, after they had taken her dog for a walk. He had not used a condom. He spoke of two occasions when she put his penis in her mouth. He said that he had had sexual intercourse the previous evening at her home. Again he had not used a condom.[18]There is a revealing passage in the interview which encapsulates the message which A was trying to convey in interview. "But like after that like when I was like walking down the road home, at one point.... When I was there I knew -- I knew I wanted to do -- like I didn't want to do it but .... You know what I mean? Like I wanted -- I wanted to find out what it would be like. And then the other like part of me thought 'I know it's wrong', but I wanted to find out what it's like, you know what I mean?"19. "I -- I don't -- I know she's gonna get like sent down for it, but I don't want her to get as many years as she's gonna get because she's got [J]." He was asked:20. "So, each time you've had a sexual -- a sexual act between you and Sharon has taken place, have you wanted it to happen?21. A. Well, I wouldn't have said 'No', but ....22. Q. Did she force you?23. A. No, she never.24. Q. She didn't force you.25. A. She didn't force me but .... but she's -- she's like always went along with me, if you know what I mean? Like not like went along with me, but she never like backed off or anything.26. Q. So, who would you say was more up for it?27. A. Probably me cos of my age and hormones and that.28. ....29. Q. .... did she ever tell you to stop or anything like that?30. A. No.31. Q. Did she ever not want you to do it? A. She said .... No. But she said once or twice she felt we shouldn't be doing this."[19]The offender was arrested on the same day. When she was interviewed by the police she admitted that sexual activity had taken place. She said that she knew it was wrong, but that A persisted and told her that he loved her and she had gone along with it. She declined altogether to answer any questions relating to the use of cocaine. She said:
"Well, first of all, I mean I've known [A] for, well since he was about 2. He had a bit of a crush on me. I approached him about this and obviously he admitted it. We just, we started texting each other and basically one thing led to another."
Later she said: 34. "On several occasions I told him by text and stuff that I couldn't go on and yesterday was one of the days. I text him several times at school to say that I couldn't do it no more and he just, he just basically wouldn't have it. 35. .... 36. Well he just said no. He, he .... On several occasions, no, I don't want it to stop, that he loved me. He was in love with me and he wanted me in his life and just things like that ...."

He was asked:

[20]We must now examine (albeit not in detail) the messages that were found on the MSN text. The text messages that the offender sent A do not give the impression that she sought to convey in the interview, that she was reluctant whereas A pursued her. The texting went on from 10.50pm on 18 January 2008 until 12.20am on 19 January.[21]We shall deal first with the reference to cocaine. The way in which this count was put by the prosecution is based largely on the defence case statement. The offender had been using cocaine. On 18 January when she was at home with A, and before they had sexual intercourse, she went into her kitchen and took some cocaine. She then went to the lavatory. On her return she was told by A that he had taken some of her cocaine. He had told her that he had done this by dipping his finger into it and rubbing it into his gums. The defence case statement says that the offender did not consent to him doing that and had not encouraged him in any way. She did not think that he had taken much. She was not aware of any change in his behaviour while he was at her house. They then had sexual intercourse.[22]During the course of the text messages later that evening, A told her he had traces of cocaine on his braces. An extract from the texts reads as follows:
"ges wa was all over ma brace babe wa coke lol [laugh out loud] nor lol wa ya do with it just licked it lol don't taste nice lol good lad yer a no its awful aint it a just had some more lol i will pay ya 2 get me some next time babe and when i sleep down yours i will take it then in the slie lol ya will wa i will pay ya next time 2 get me some and i will take it when I sleep round yours on the slie. a dont want no money ya daft sod a should have give ya some to take home in ya room ar yer ya no wa i am like 4 hiding things nope" 40. "ya were like 17 but a would get locked up and he would made sure of it" 41. "i no he would babe lol 42. and thats wa am frightened of 43. well ya can see ma point then 44. so you need to reassure me 45. if ya no ho to cos sometimes am like amfg 46. he is hopeless" 47. "love ya fuckin loads sexy ...." 48. "well you asked me and a said whatever you wanted so you should of done whatever you wanted babe 49. .... 50. tell me what ya like wa ya dont and wa ya want 51. and a love it wen ya naked and not shy babe cos ya got a gorgeous body on ya babe"
[23]We have considered the material of the interview with A, the interview with the offender and the unvarnished text which was discovered of the communications between them on the night of 18-19 January 2008. We reject the judge's conclusion that this boy (and we used the word deliberately) seduced the offender whether for sexual purposes or in order to gain access to cocaine. He had never touched any drug before he met her. She undoubtedly had. He was a boy of 14, a virgin. She was sexually experienced. She is not unintelligent, nor simple. She was not by blood, but by years of close friendship a member almost of the extended family who had known him as a little boy and had seen him grow up. During the years he and her son J were in and out of each other's homes in the usual way. If he had developed something of a crush on her, that is what it was, a boyhood crush. She should have helped him get over it, or simply waited until time had done what was necessary.[24]However that may be, and however thrilled, as A indicated in his answers he may have been, he was simultaneously very worried. However all that adds up, it does not amount to him seducing her. In fairness to her counsel, we do not find in the transcript of the proceedings before the judge any suggestion that the offender had been seduced by the boy. Nor did the offender suggest that in terms. Counsel accepted that a custodial sentence would be appropriate. The issue, as she submitted to the judge, was its length, not whether it should be suspended.[25]But for the intervention of the offender's husband, which brought all these matters to light, it is difficult to avoid the conclusion that the offender's offer to supply cocaine was genuine and that if the boy had indeed asked for it she would have found some for him. In the end she did not actually supply it. On the only occasion he took it, he helped himself from her own supply.[26]The evidence before the judge, apart from the fact that the offender was a woman of good character, included a detailed psychiatric report dated 3 October 2008. It records that the offender was very depressed from about the summer of 2007, at the time when these offences were committed, and that after they had come to light she took an overdose of paracetamol in March 2008 which led to her admission to hospital for three days and that she had since then thought of a number of different ways to kill herself.[27]Since the decision of the sentencing judge we have been provided with a further report from the Probation Service and a report from the offender's current hostel. We accept that she is making every effort to put all this behind her. In order to examine the judge's view that the boy had seduced the offender, we have addressed in more detail than would be normal the aggravating features of this case. There is, however (and we do not overlook it), a sad element to it. As we have said, the offender was a woman of good character. The judge was right to explain, on the basis of medical evidence, that she had been depressed for some time before this affair began and had continued so after it came to light. We must also record that the consequences of the affair and of it coming to light have been for her catastrophic. Unsurprisingly, her marriage has broken down. Her children no longer live with her. Her elder son wants nothing to do with her. Fortunately, contact has been re-established with her younger son. In truth she has lost everything. Her life is in ruins. All this is taking place in the public eye. It is true that these wounds are self-inflicted, but they are nonetheless wounds.[28]These are offences of serious culpability. That cannot be denied. The mitigation, too, is substantial. The offender is entitled to credit for her guilty pleas. We have been asked to note that guidelines proposed in these cases are put forward on the basis that they should apply irrespective of the gender of the victim or of the offender, except in specified circumstances where a distinction is justified by the nature of the offence. We agree that young boys, as well as young girls, are vulnerable. Parliament has not sought to distinguish between then in the legislation. Neither should we.[29]We must therefore reach a sentencing decision in the context of a sentence imposed by the judge which we regard as unduly lenient because it was based, among other things, on an incorrect approach to what was described as A's seduction of the offender. We do so in the context of all the individuals concerned, bearing in mind the substantial mitigation to which the offender can point. In our judgment the conclusion which cannot be avoided is that the sentence of imprisonment imposed by Judge Fox ought not to have been suspended and that his decision that it should be suspended was unduly lenient.[30]Accordingly, we have concluded that this is a case where an immediate sentence of imprisonment is appropriate. Given the mitigation, the guilty plea, the impact of the double jeopardy principle, we have concluded that the right sentence to be imposed is one of twelve months' imprisonment. That sentence will no longer be suspended. It will take effect from the moment when the offender surrenders to custody. Miss Sherwin?[31]MISS SHERWIN: My Lord, if she surrenders to custody today, that will cause some logistical difficulties.

THE LORD CHIEF JUSTICE: No, it must be back in the home area.

[33]MISS SHERWIN: My Lord, she will travel up north where she will arrive some time later this evening, I would anticipate. I do not know if your Lordship wishes her to surrender to somewhere tonight?

THE LORD CHIEF JUSTICE: Mr Denison, unless there is any suggestion to the contrary from you, we would be inclined to say she must surrender to the nearest police station to the accommodation where she currently lives by one o'clock tomorrow.

[35]MISS SHERWIN: I am grateful, my Lord.

THE LORD CHIEF JUSTICE: The sentence of twelve months' imprisonment will be on each count on this indictment, all the sentences to run concurrently.