Wilson, R v [2013] EWCA Crim 2544

No. 2013/04451/A7[2013] EWCA Crim 2544
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Venue Royal Courts of JusticeDate Tuesday 8 October 2013
The Strand
London WC2
B e f o r e:
THE LORD CHIEF JUSTICE OF ENGLAND AND WALES
(Lord Thomas of Cwmgiedd)
MR JUSTICE HENRIQUES
and
MR JUSTICE BLAKE
ATTORNEY GENERAL'S REFERENCE No. 53 of 2013
UNDER SECTION 36 OF
THE CRIMINAL JUSTICE ACT 1988
Between
R E G I N ACrown- v -
Between
NEIL WILSON
Computer Aided Transcription byWordwave International Ltd (a Merrill Communications Company)165 Fleet Street, London EC4ATelephone No: 020 404 1400; Fax No: 020 7404 1424(Official Shorthand Writers to the Court)
Miss S Whitehouse appeared for Attorney GeneralMiss R Blain (Solicitor Advocate) appeared for Offender
J U D G M E N TTuesday 8 October 2013THE LORD CHIEF JUSTICE:
[1]Her Majesty's Attorney General applies under section 36 of the Criminal Justice Act 1988 for leave to refer to the court sentences which he considers to be unduly lenient. The sentences were imposed by His Honour Judge Peters QC upon the offender at the Crown Court at Snaresbrook on 5 August 2013, as corrected subsequently on 12 August 2013. We grant leave.[2]The sentences passed were: eight months' imprisonment for one count of sexual activity with a child contrary to section 9(1) of the Sexual Offences Act 2003; a consecutive term of four months' imprisonment for making indecent photographs of a child contrary to section 1(1)(a) of the Protection of Children Act 1978; and concurrent terms of four months' imprisonment for two counts of possessing extreme pornographic images contrary to section 63(1) of the Criminal Justice and Immigration Act 2008. All of the sentences were ordered to be suspended for two years. Requirements for supervision and sex offender treatment were made.

The facts

[3]As is customary in cases of this kind, the court has been provided with a detailed summary of the facts in the Reference. It is derived in small part (which is to all intents and purposes immaterial) from the account given by AM, the victim, in a video interview that was conducted the day after the assault. Thereafter, AM refused to assist the police. The substance of the account set out, and the basis therefore upon which the sentencing court and we consider this matter, is derived in large part from the interviews with the offender and from what he said (which was substantially the same) to the author of the pre-sentence report. The case proceeded substantially on the basis of his account. That is a fact relied upon by Miss Blain who has represented the offender in this court.[4]Miss Blain has submitted that we should not take into account three matters set out in the Reference. It seems to us that she is right in her contention. They are not material; they are matters that were not before the sentencing court. When we say "before the sentencing court", we mean in the papers - either in the interview of the offender, in what he told the author of the pre-sentence report, or set out in other uncontested documentation that was before the sentencing court. The fact that counsel who appeared for the Crown Prosecution Service does not expressly mention a fact to the judge is not generally - and certainly not in this case - material. It is the experience of this court that appeals of this kind often arise because matters have not been thoroughly dealt with in a way to be expected of those who appear on behalf of the Crown at the Crown Court. It would be unjust if we could not take into account anything that was before the judge, which was not, in fact, in dispute. The overriding question is whether there is anything which would cause prejudice to the offender. In this case there is not. The account we shall set out is, therefore, uncontested. It was the offender's account, but it is much fuller than that which counsel had put before the judge.[5]The offender is 40 years of age. He was born on 21 October 1972. The victim was, at the relevant time in March 2012, 13 years of age. On Tuesday 6 March 2012 she played truant from school. She went to the town centre at Romford, the town where the offender was then living. She began to ask passers-by for cigarettes. One of those she approached was the offender. He told her that he did not smoke. He said, however, that he would buy her some cigarettes. He went to a shop and returned with cigarettes. She then told him that she was 16 years of age and asked if she could use his home 'phone to contact a family member. He agreed and took her back to his flat in Romford. Although the events that then occurred were charged as the first count on the indictment, that count was not proceeded with. However, as the account of what happened was the offender's own account, and as it is material to an overall assessment of the second visit in relation to which the charge was brought and which he admitted, it is important that we set out what happened.[6]The offender's account was that he and the victim chatted. They then watched television. He hugged the victim to comfort her. He said that she then kissed his neck and placed her hands on his trousers over his penis. He rejected her advances. He did not ask her to leave, but gave her his mobile 'phone number in case she needed someone to talk to.[7]In the days that followed, the offender and the victim exchanged a number of text messages. He told the author of the pre-sentence report that she indicated she was younger than 16 and that he sent material of a sexual nature in the text messages. He explained to the author of the pre-sentence report that he did so because he tried "to scare her with sex". Eventually the offender told the victim that he felt guilty and that they should not continue to contact each other. However, on 12 March the victim posted a note through the offender's door. She also sent him a text message. Contact resumed and further text messages were exchanged.[8]All of that background is highly material to an examination of what happened on the day to which the charge which the offender faced related. That day was Tuesday 20 March. The victim again went to the offender's flat in Romford. When he let her in, she was in school uniform. She asked if she could change. She re-appeared wearing nothing but a T-shirt. The offender says that he told her to put her clothes back on, but that she began to kiss and touch him. She then undid his trousers and masturbated his penis. He subsequently told the police that he had been angry and had told her to stop. She turned round and attempted to lower herself onto his penis. At that point there was contact between his penis and her vagina. He then pushed her away. The victim left. The next day she told a friend what had happened and her friend advised her to tell the police.[9]In consequence, the offender was arrested on 23 March 2012. His computer was seized. On analysis it was found to contain indecent images of children. It is important to note that the images had been viewed between 16 March 2012 and 23 March 2012, that is to say, on dates immediately surrounding the offence we have just described in relation to the victim, AM. He was charged in respect of eight of the images found: two were at Level 1, two were at Level 2 and four were at Level 3. Those at Level 3 included two images of very young female children holding the erect penis of an adult male. There were also found on his computer eleven extreme pornographic images portraying in an explicit and realistic way a person performing an act of intercourse or oral sex with an animal. They included photographs of a naked adult female being penetrated by a dog's penis, and a woman performing oral sex on a horse's penis. The offender was charged with possession of those. Other matters were found, but not charged. We do not take those into account.[10]The offender was bailed. He then moved from Romford to York. On 10 October 2012 the police went to his home in York, having obtained a search warrant. On his computer there were found further extreme pornographic images portraying in an explicit and realistic way sexual intercourse and oral sex between humans and dogs and horses. He was subsequently charged with possession of these extreme images. No charges were brought in respect of other material found on his computer. Again, we do not take that into account.[11]On 24 June 2013 there was a pre-trial hearing at the Crown Court at Snaresbrook in respect of the offences relating to Romford. On that occasion the offender pleaded guilty to the offence of sexual activity with AM on 20 March 2012. He was released on bail. He was warned by the judge that the sexual touching of a child of that age almost invariably involved immediate imprisonment. It was decided that the matter charged in relation to what had happened on the previous occasion would not be proceeded with. A sentencing hearing was fixed for 5 August 2013, when the offender admitted the offences relating to the obscene images found in York. Those matters were transferred to Snaresbrook for sentence. In the meantime, the pre-sentence report to which we have referred was prepared.[12]At the hearing before Judge Peters, the offender pleaded guilty to the offences relating to the images found on his computer in Romford. In the course of the Crown's opening of the facts which we have set out, the judge enquired as to how old the victim would have looked in March 2012. The police officer's view was that she would have looked 14 or 15. When counsel started to describe the meeting on 20 March during which the offence of sexual activity took place, there was the following exchange:
"COUNSEL: They agreed to meet, and he texted back. JUDGE PETERS: I am sorry to keep interrupting but when you say 'agreed to meet', this is a very much a 50-50 consensual meeting? COUNSEL: Yes, your Honour. Very much so, and she is undoubtedly, it is fair to say, very sexually experienced, and one hesitates to use the word, but it is a word that has been used in other cases, I think the officer would agree that she may well be what is described as 'predatory' in respect of her activities. JUDGE PETERS: Yes. Well, as I say, I need to know all these things. She said she was nearly 16. COUNSEL: Yes, your Honour. JUDGE PETERS: Whatever that means. COUNSEL: Initially she said that she was 16 and then she said, 'I am nearly 16'. I was 16 a couple of months ago. I am nearly 16. THE JUDGE: All right. Thank you."
[13]After setting out some the facts, counsel for the Crown drew to the judge's attention the guideline in respect of the offence of sexual activity with a child under 13. We shall refer to that in a moment.[14]In her mitigation Miss Blain relied on the "candour" of the offender's admissions and in particular upon the description given by the Crown of the conduct of the victim. In addition, the judge had before him the pre-sentence report which set out the offender's background and his employment history. He also had details of two previous offences; those are entirely irrelevant.[15]The judge proceeded to pass sentence. He told the offender that he had come as close to going to prison as was imaginable. He said that he took into account the appearance of the victim as described by the police officer. He went on to say that, by his plea, the offender accepted that he knew the victim was under 16 and that allowing her to visit his home was something on which the court had to clamp down. In normal circumstances that would have involved, "a term of significant imprisonment". He added:
"These are prevalent offences and young girls need the protection of the courts by such sentences."
He then added: 16. "On these facts, the girl involved, I am told, to use the expression, was 'predatory' and was seriously egging you on. That, of course, is no defence when dealing with children, but in all the circumstances I am prepared to impose upon you a suspended prison sentence."

He then added:

[16]In respect of the offences of possession of indecent images and extreme pornography, the judge said that anyone who sought gratification from indecent images of adults with children and extreme pornography needed treatment. Although in normal circumstances a prison sentence would be appropriate, as there was no evidence that the offender had shown any of the items to anyone or exchanged them with anyone, a sentence of immediate imprisonment was unnecessary. He concluded that what was appropriate was treatment on a sex offender's course which would take three years. He therefore imposed a Community Service Order for three years with a condition of undergoing a sex offender's programme concurrent with the suspended sentence of imprisonment.[17]It is well-known that it is the duty of counsel for the Crown to draw to the attention of a judge the extent of the relevant sentencing powers. It appears that at the time neither the judge nor counsel appreciated that the judge had no power to impose the sentence he did, as it is not possible to pass a two year suspended sentence concurrently with a three year community order. When this was drawn to his attention, the judge corrected it at the subsequent hearing when he imposed a suspended term of four months' imprisonment, to run consecutively to the eight month suspended sentence. In the result, therefore, the offender received a sentence of twelve months' imprisonment suspended for two years.[18]Miss Whitehouse, on behalf of Her Majesty's Attorney General, contends that the sentences passed, and in particular that in respect of the offence of sexual activity with a child, were unduly lenient. She submits that the judge adopted an approach that was wrong in principle. Far from it being any mitigation that, on the offender's account, the victim had initiated what happened, that was, in the Attorney General's submission, an aggravating not a mitigating factor. Other criticisms are made of the judge's approach to which we will refer in a moment.[19]On this issue the Attorney General is unarguably right. It has been clear since at least the Offences Against the Person Act 1861, and subsequent nineteenth century legislation, that the purpose of Parliament in passing legislation to make it a crime punishable with imprisonment to have sexual relations with those under 16 was to protect those under 16. Indeed the Criminal Law Amendments Act 1885 makes it expressly clear that that was the purpose of the legislation. That can be seen from the preamble to the Act and was made clear by this court in R v Tyrrell [1894] 1 QB 710.[20]That long-standing principle is well-known. The reduction of punishment on the basis that the person who needed protection encouraged the commission of an offence is therefore simply wrong. We agree with the submission of the Attorney General that an underage person who encourages sexual relations with her needs more protection, not less. Accepting that as the basis for sentencing for the reasons we have explained, the fact that the offender took advantage of what he asserted the victim did aggravated the offence. The Attorney General is therefore right to say that the victim's vulnerability was an aggravating rather than a mitigating feature.[21]It is contended by Miss Blain on behalf of the offender that the Crown cannot now assert something different to that which they asserted in the Crown Court.[22]It is, first, important to clarify what happened. It is clear from the transcript from which we have quoted what counsel told the judge. However, we are told by Miss Whitehouse, on behalf of the Attorney General, that the word "predatory" to describe the victim was not used by either the police in any document provided to the CPS, or by the CPS in any instructions to counsel. The word "predator" had been used only in relation to the offender. How counsel, who is not present today, came to make the remark he did is not a matter into which we can enquire. In any event, it is the duty of the court to sentence on the facts before it. Counsel is there to assist. The fact that counsel makes a fundamental error in introducing a factor that is thought to be relevant cannot in any way affect the power of this court to determine the correct sentence. This is a case where there is no dispute as to what actually happened. It is simply a case where the judge and counsel were in error in thinking it was relevant as a mitigating factor that the sexual activity had been initiated by the victim. For the reasons we have already given, that was wrong.[23]The Attorney General draws attention to other aggravating features. First, the offender must have known that the victim was under 16. By his plea he accepted that. The fact that she may have looked older than her age is irrelevant. Secondly, he must have appreciated her vulnerability. She was in school uniform; she had absconded from school; and she was asking for cigarettes on the street in Romford. Thirdly, the offender preyed on her vulnerability. He encouraged her by buying her cigarettes. He invited her back to his flat. He gave her his mobile 'phone number. On the first occasion she was at the flat, she touched his penis over his clothing. After that, he maintained contact with her. He sent her sexually explicit text messages. Next, there was a very significant age gap between the offender and the victim. Finally, he was in possession of indecent images of children which had been viewed at a time close to the offence. It is plain that the offender had a sexual interest in children.[24]As against all of that, the only mitigating feature is his plea of guilty.[25]The sentencing guidelines applicable to this case are those issued by the Sentencing Guidelines Council. The starting point, as defined in those guidelines, is two years with a sentencing range of between one and four years' custody.[26]It is clear that the judge appreciated that for an offence of sexual touching of this kind a sentence of immediate custody is the sentence that should ordinarily be imposed. There may of course be circumstances where that may not be the just and right sentence. However, in this case, there were no circumstances whatsoever that justified a departure from the principle that a custodial sentence was appropriate. An immediate sentence of imprisonment should therefore have been imposed.[27]We have therefore unhesitatingly reached the conclusion that the sentence was plainly, and without doubt, unduly lenient.[28]In arriving at the sentence which should have been imposed for the offence of sexual activity with a child, taking into account all matters, we give full credit for the offender's guilty plea tendered at the first opportunity. We also take into account the fact that, since the date of sentence, he has attended regularly and properly a number of weekly appointments at the Probation Service. They advise that he is motivated to address his offending behaviour. As we observed to Miss Blain, however, the report is not entirely positive as it is apparent that the offender expresses both resentment and sympathy towards the victim, but still maintains that the sexual activity was initiated by her.[29]We are not in this case dealing with a sentencing guideline. We are reviewing the sentence and taking into account all the circumstances, including the other offences which we have set out, and what has happened since. Taking all of these factors into account, together with the mitigating and aggravating features to which we have referred, we shall substitute for the sentences imposed, a sentence of two years' immediate custody. That sentence will be for the offence of sexual activity with a child under the age of 13. The other sentences of four months' imprisonment imposed by the judge will remain unaltered in their length, but they will be served concurrently. Accordingly, the overall sentence is one of two years' imprisonment.[30]The offender must surrender to custody at Fulford Road Police Station, York by 6pm today.