Dunn, R. v [2015] EWCA Crim 724

[2015] EWCA Crim 724Case No 2014/2763/C1
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Venue Royal Courts of JusticeDate Wednesday, 25 February 2015
Strand
London, WC2A 2LL
B e f o r e:
LORD JUSTICE LAWS
MR JUSTICE JAY
MR JUSTICE EDIS
Between
R E G I N ACrownv
Between
CHRISTOPHER DUNN
Computer Aided Transcript of the Stenograph Notes ofWordWave International LimitedA Merrill Communications Company165 Fleet Street London EC4A 2DYTel No: 020 7404 1400 Fax No: 020 7831 8838(Official Shorthand Writers to the Court)
Mr A Lewis appeared for AppellantMr J House QC appeared for Crown
J U D G M E N T

LORD JUSTICE LAWS:

On

[1]7th May 2014 before His Honour Judge Hammond at Leicester Crown Court, this appellant was convicted by the jury of seven sexual offences against three female complainants. The complainant on counts 1 to 3 was KB, on count 4 GR and on count 7 BW. Their anonymity is to be preserved pursuant to the provisions of the Sexual Offences (Amendment) Act 1992. Counts 1 to 3 alleged in respect of KB were offences of indecent assault. Counts 4 to 6, GR, offences of sexual activity with a child. Count 7, BW, indecent assault.[2]On 30th May 2014 the appellant was sentenced as follows. On counts 1, 2 and 3 prison terms of one, two and three years respectively were imposed to be served concurrently with each other. On counts 4, 5 and 6 prison terms of two, five and two years respectively were imposed, to run concurrently with each other but consecutive to the three years on counts 1 to 3. Lastly, on count 7 a term of two years to be served concurrently with the other sentences. The total was eight years. Other orders required by statute were made and also a Sexual Offences Prevention Order by which, among other things, the appellant was prohibited until further order and subject to certain qualifications from having unsupervised contact with any female under 16.[3]The facts may be briefly stated. The appellant's parents ran a music school. He taught there and was also involved in administration, including escorting students on overseas tours. The three complainants were students at the school all aged, save we think with regards to one instance, 15 at the time of the offences. In the other instance the girl was 16. Counts 1 to 3 were specimen counts charging offences committed against KB in the appellant's car, at his parents' address and on his boat - count 1 kissing her, count 2 fondling her breasts, count 3 causing her to masturbate him.[4]Next in time came count 7, an allegation that the appellant had twisted BW's nipple when she was wearing a bikini at a swimming pool on a visit to Germany. Count 4 was an allegation of kissing GR. Count 5 represented some five occasions on which he penetrated GR's vagina with his finger. She also said that she had touched his penis. Count 6 charged an act of consensual sexual intercourse with GR when she was just over 16.[5]The appellant now appeals against his conviction on count 3 only by leave of the single judge and renews his application for leave to appeal against sentence after refusal by the same single judge.[6]It will be recalled that count 3 charged an offence of indecent assault. The particulars of offence read:
"Christopher Dunn on an occasion other than in counts 1 and 2 between the 21st day of March 1999 and the 20th day of March 2000 indecently assaulted KB, a female person aged 15, namely by causing her to masturbate him."
In her statement to the police KB had said:
"I would masturbate him on his exposed penis."
In her evidence to the jury, she said that she:
"... touched his genital area obviously at some point. He touched my genital area."
[7]The appellant's short point is that count 3 did not allege facts which were capable of constituting an assault in law. The applicable statute law at the relevant time was the Sexual Offences Act 1956 and indeed the appellant was charged by count 3 under section 14(1) of that Act. The allegation that the appellant caused KB to masturbate him could, it is said, properly have been charged as an offence of gross indecency with a child, contrary to section 1(1) of the Indecency with Children Act 1960.[8]The appellant relies on the decision of the Divisional Court in Fairclough v Whipp 35 Cr.App.R 138 which has been followed many times. In that case the respondent exposed himself in the presence of a nine-year-old girl and invited her to touch his penis. It was held that an invitation to another person to touch the invitor cannot amount to an assault on the invitee.[9]In this case counsel for the Crown originally suggested that Fairclough v Whipp was wrongly decided. That has been abandoned by Mr House QC this morning. However it seems to us we should deal with the point, albeit shortly. It was contended that in some cases, perhaps including this one, the distinction between the defendant touching the complainant and the complainant touching the defendant leads to absurdity, and Fairclough wrongly imported into the law relating to sexual offences the common law understanding of an assault as an offence of violence, the application of unlawful force. The meaning of a "sexual assault" for the purposes of section 3 of the up to date legislation (the Sexual Offences Act 2003) demonstrates a looser, more practical approach.[10]However, the Indecency with Children Act 1960, under which, as the appellant rightly submits, the appellant could have been prosecuted for the acts of masturbation by KB, was enacted on the very premise that as the law stood before it was passed there was no indecent assault without some form of threat or show of force to the victim - see the first report of the Criminal Law Revision Committee.[11]In short, Parliament proceeded in 1960 on the basis that Fairclough v Whipp was correct given, we repeat, that the appellant could have been properly prosecuted for the facts which gave rise to count 3 and given that in any event the law was moved on through the medium of the Sexual Offences Act 2003, there is nothing to justify our contradicting Parliament's premise in 1960 and overturning what has been settled law since Fairclough was decided in 1951.[12]Today, Mr House for the Crown seeks to distinguish Fairclough on the facts. But the conclusive point is that count 3 in the indictment did not allege an assault. That seems to us to be an end of the matter. The appeal against conviction on count 3 must therefore be allowed.[13]We turn to the application for leave to appeal against sentence. The appellant is just 40. He has no previous convictions. His successful appeal against conviction on count 3 will reduce the overall sentence from eight years to seven years. KB was just under 16 when counts 1 and 2 were committed. After her 16th birthday, as we understand it, she and the appellant had a full sexual relationship, having agreed at her request or suggestion not to have full sex before then. The single

judge said this:

"So far as sentence is concerned, you were a music teacher in a position of trust. You targeted and groomed young girls aged 15 for your own sexual gratification in breach of that trust. The offences occurred when you were aged 25 and continued into your 30s. Your pattern of offending justified the conclusion that a SOPO was necessary to protect young teenage girls from serious sexual harm and there is no reasonable arguable basis for contending that the SOPO was wrongly imposed. Your sentence of 8 years' imprisonment in total was imposed by the judge who presided over your trial and was in the best position to assess your culpability and the harm involved in your offending. The counts you were convicted of were specimen counts. You targeted vulnerable girls who were too young to give legal consent; and you abused the trust placed in you as their teacher. The sentences imposed by the learned judge were well within the range available in the Sentencing Council guidelines. Consecutive sentences in respect of the offences against KB were justified on the facts. The judge had regard to totality and passed a total sentence that was justified and proportionate having regard to all the circumstances."
In our judgment the single judge was quite right to emphasise the appellant's position of trust, as did the sentencing judge who also properly applied the relevant guidelines. As the single judge said this was a bad case of breach of trust. These were in the circumstances serious offences involving the grooming and indeed the corruption, it may be said, of three young girls. Their consent is scant mitigation. The law is there for their protection.[14]To our mind the only question apart from the SOPO is the totality of the sentence, now seven years. Was an eight year term justified originally and a seven year term now for a 39-year-old man of good character? We think the right sentence here should have been six years overall and that is the result we propose to achieve. We will therefore grant leave to appeal against sentence, treat this hearing as the hearing of the appeal, the sentence on count 3 is of course quashed along with the conviction. We will reduce the two year sentence on count 2 to one year, which will run concurrently with the one year passed on count 1, but consecutively to the five-year term passed on count 5. The total sentence will be six years' imprisonment.[15]As for the SOPO, Mr Lewis in the grounds on the appellant's behalf emphasises these points at paragraph 28:a. A. All the defendant's offending centres upon the music centre run by his parents where he grew up. We interpolate that it is not at all clear to us why that bears on the necessity of the SOPO.b. B. He did not abuse any other teaching or social position.c. C. He will never again work with children.d. D. He has committed no offences since 2007.e. E. (And this was emphasised this morning in oral submissions) he has been on unconditional bail throughout this investigation in which he was first interviewed in 2010. It is also pointed out that he will be on licence when he is released.

The judge passing sentence made these observations:

"When he gave evidence he came across as arrogant and overbearing and when interviewed by the police he was arrogant and deliberately difficult; it was to be conducted on his terms and not theirs. Courts have a duty to protect young, vulnerable girls from themselves and from sexual predators like this defendant. The pre-sentence report says that he poses a high risk of serious harm to children and he regarded the investigation as a witch hunt."
The judge was in a perfectly good position to make an assessment of this man during the course of the trial. The fact is that he demonstrated the sexual proclivity towards young girls at the age of 25 until he was well into this thirties. It is true there has been no re-offending and there are certain other protections such as licence on release, but we think that since the purpose of a SOPO is to avoid future risk, the judge was perfectly justified in holding that it was indeed necessary. We will accordingly not interfere with it.[17]To the extent indicated before in the reasons given the appeal against conviction is allowed, leave to appeal is given against sentence and the sentence appeal is also allowed.

Cited in 2 later judgments