Hartfield, R. v [2017] EWCA Crim 1499

[2017] EWCA Crim 1499Case No 2017/1704/A4
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Venue Royal Courts of JusticeDate Wednesday, 24 May 2017
Strand
London, WC2A 2LL
B e f o r e:
LORD JUSTICE SIMON
MR JUSTICE GREEN
THE RECORDER OF MIDDLESBROUGH
(HIS HONOUR JUDGE BOURNE-ARTON QC)
(Sitting as a Judge of the CACD)
REFERENCE BY THE ATTORNEY GENERAL UNDER
S.36 OF THE CRIMINAL JUSTICE ACT 1988
Between
R E G I N ACrownv
Between
CHRISTOPHER HARTFIELD
Computer Aided Transcript of the Stenograph Notes ofWordWave International LimitedTrading as DTI8th Floor, 165 Fleet Street, London EC4A 2DYTel No: 020 7404 1400 Fax No: 020 7404 1424(Official Shorthand Writers to the Court)
Miss A Morgan appeared for Attorney GeneralMr R Barton appeared for Offender
J U D G M E N T
[1]On 23rd February 2017 in the Crown Court sitting at Lewes, at a pretrial preparation hearing, this offender, aged 41, pleaded guilty to the following offences: Count 1, attempting to cause or incite a child to engage in sexual activity, contrary to section 1(1) of the Criminal Attempts Act 1981; and count 2, attempting to meet a child following sexual grooming, contrary to section 1(1) of the Criminal Attempts Act 1981. The case was adjourned for the preparation of reports in relation to the offender.[2]On 23rd March 2017 before His Honour Judge Coltart, the offender was sentenced to concurrent sentences of 18 months' imprisonment, suspended for a period of 24 months, with requirements that he participate in a sex offender treatment programme and that he undertake all rehabilitation activity requirements as directed by the probation service for a period of up to 10 days.[3]A Sexual Harm Prevention Order was made until further order and the offender was made subject to notification requirements for a period of 10 years, pursuant to the Sexual Offences Act 2003, schedule 3.[4]The Attorney General seeks leave to refer the sentence to the court under section 36 of the Criminal Justice Act 1988 as being unduly lenient.[5]In summary, over a period of weeks the offender engaged in a dialogue over social media with a user profile called "Hayley". This profile had been created by a man acting as part of a group called "The Hunted One" which sought to identify paedophiles on the internet. The offender believed that Hayley was a 14-year-old schoolgirl. He attempted to incite her to engage in sexual activity, including inserting a hairbrush into her vagina. He also made arrangements to meet her, with the intention of engaging in sexual activity with her, and travelled to meet her. He was confronted by members of The Hunted One who called the police and he was then arrested.[6]In more detail, in the early months of 2016 a man named Andy Bradstock set up a user profile on a messaging service called Waplog. The profile was of a girl called Hayley Stevens, who was not a real person. Mr Bradstock inserted a photograph of a girl as the picture profile on this site. The photograph showed the face and, based on this image alone it would not be possible to be sure of the age of Hayley. Mr Bradstock is not a police officer but describes himself as having a keen interest in exposing paedophiles and making children aware of safety on the internet. He belongs to 'The Hunted One' group. He has said that his group have been successful in targeting and exposing other individuals in the past.[7]On 22nd January 2016, while acting under the username of "HayleyStevens", he came into contact with the offender's user profile "ChrisHartfield29". The offender sent a message saying "Hi". A day later on 23rd Hayley responded: "Hi". The offender asked: "How are you Hayley?" Hayley responded: "I am good ty. I am 14 years old from London wbu?" The offender responded: "Am 40 from Hove."[8]The offender asked Hayley if she had a mobile telephone number and then asked:
"What are you looking for?"
He did not get a response to that question. By 24th January the offender asked:
"Will you be my gf Hayley?"
She responded:
"I dunno, maybe if I get to know you first."
[9]Later on 24th January the offender sent her pictures of himself fully clothed. Only part of the dialogue of 25th January appears to have been provided to the police by Mr Bradstock. At 20.58, and apparently in response to something said by Hayley, the offender said "Yes", followed by him sending her a picture of his erect penis. We interject to observe that it is unfortunate and perhaps a troubling feature of this case that whatever was sent which resulted in him sending a picture of his erect penis has never been made available to the prosecuting authority. She responded "Cool" and then "Oh another one". The offender then asked her what she would do if they met, asking whether she would undress. Hayley asked him what was right for her to do. They then discussed her underwear. The offender told Hayley that she would feel a "tingling inside" as he would "rub ur pussy". Hayley asked him what he meant, saying:
"I'm only 14, I don't understand all your words."
The offender then discussed where they could meet "to do things". The offender made a number of suggestions about what he would do to Hayley, including lifting up her skirt, touching her vagina with his hands and tongue. Hayley indicated that she had no experience of this. The offender and Hayley sent messages to each other on a number of days thereafter. During their discussion Mr Bradstock made the revelation that “Hayley” was a schoolgirl who was 14 years old, which the offender acknowledged. They chatted for one to one-and-a-half hours each day.[10]It is unnecessary for present purposes to set out even in summary the contents of 645 pages of the transcribed messages. The reference provides examples of the messages sent and we are quite satisfied that they present a representative sample.[11]It is clear that during the course of these conversations the offender attempted to incite Hayley to engage in sexual activity. On 27th January he encouraged her to penetrate her vagina with her fingers. On 28th January he encouraged her to penetrate her vagina with a hairbrush. This incitement formed the basis of the allegation in count 1: attempting to cause or incite a child to engage in sexual activity. The offender said:
"Are you ready to go sexy? Okay, I want you to ease the handle inside your vagina."
Hayley responded:
"Oh wow" and the offender asked: "
Does that feel good?" He told her to push the hairbrush further in and to move it in and out telling her:
"This is what your bf will feel like."
He told her that he was "rubbing my cock for you".[12]The offender revealed that he lived in Hove, worked for a pensions company, had a girlfriend and a seven-year-old son. On 22nd February the offender sent further images of himself to Hayley, including a photograph of his penis. During these discussions the offender arranged to meet Hayley on three occasions at different train stations. On the first two occasions the offender cancelled. The third occasion was organised on 29th February and the offender arranged to meet Hayley the next day at Hove train station.[13]Shortly before 9 am on 1st March, Mr Bradstock went to the station with two associates. They waited for the offender to get off a train and then confronted him. Mr Bradstock asked the offender what he was doing and the offender responded:
"Waiting for a friend."
Mr Bradstock asked for the friend's name and the offender said "Hayley". Mr Bradstock said:
"You do know that Hayley is 14 years old?"
The offender replied:
"I thought she was 18."
Mr Bradstock then presented some printouts of their discussions. His associates called the police who soon attended. Mr Bradstock removed the offender's telephone from him and handed it to the police. Police officers described Mr Bradstock and his associates as "crowding around" the offender. The police spoke to both parties and then arrested the offender. He was cautioned and made no reply.[14]Following his arrest the offender's home address was searched. An internet router and a laptop were seized, but no material of significance was retrieved from those devices.[15]The offender was interviewed by the police on 1st March in the presence of a legal representative and was asked about the dialogue with Hayley. He said that he had met a lady called Hayley Stevens on Waplog. He was told by her that she was 18 years old and he had no reason to doubt this. As he has a partner he decided not to take things any further, and blocked her account two to three weeks before his arrest. She had continued to send him messages and he decided to meet her to tell her that he wanted nothing to do with her.[16]The offender had no previous convictions or cautions recorded against him. A pre-sentence report was prepared in relation to him. The opinions expressed in the report can be summarised. Although he had pleaded guilty he continued to maintain that he was not aware that Hayley was aged 14, and insisted that he believed she was 18. He also maintained that the purpose of meeting was to tell her to stop contacting him. At the time of his first contact with Hayley he and his partner had not been sexually active for about five months and there was little emotional connection between them. He said that he was suffering from depression and wanted a little bit of love. The offender insisted that he had no sexual attraction towards children and was aware that it was against the law. He recognised that if she had been 14 years old she could have been scarred for life. The offender demonstrated a good understanding of the potential impact of the offence. The author of the report observed:
"It remains unclear the level of attraction that Mr Hartfield has to children as he remains in significant denial."
[17]At the time of the offence he had a son from a previous relationship and a stepson. Since his arrest he had not had contact with either. The author concluded that as the offender had no history of offending and, taking into account his age, it could indicate a low risk of re-offending. It was however of concern that he remained in denial about his offending:
"Until he undergoes sufficient sex offender treatment and a monitoring process he is assessed as being a medium risk of re-offending."
[18]He was assessed as being suitable for a Sex Offender Treatment Programme.[19]The Attorney General submits that the following aggravating factors are present in this case. In relation to count 1, the sexual activity which was incited involved penetration of the vagina with an object; the offending involved a degree of planning; the chat appears to have escalated over a period of six weeks; the count 1 offence involved grooming behaviour albeit that this was also encompassed in the offending charged under count 2; the count 2 offence involved the exchange of sexual images and there was a significant disparity in age.[20]The Attorney General accepts that there were also a number of mitigating features: first, there was in fact no victim involved; second, there was no evidence to suggest that these offences would have been committed without the involvement of The Hunted One group; third, the offender had reached the age of 41 without any previous convictions or cautions recorded against him; fourthly, the guilty pleas were entered by the offender at the PTPH.[21]Miss Morgan appearing for the Attorney General submits that the sentences passed were unduly lenient for the following reasons. The sentences should have been placed at the higher end of the sentencing range for Category 3 of the Sentencing Council Guidelines for the offences under section 10 and section 15 of the Sexual Offences Act 2003. The judge's approach towards the sentencing exercise failed to reflect the harm intended by the offender. Although the offences were attempts, there were aggravating features present that justified placing the offender at the higher end of Category 3. There was no proper justification for suspending the sentences of imprisonment.[22]Mr Barton who appears for the offender has put in written submissions, albeit somewhat late, emphasising the following points in relation to mitigation, some of which are acknowledged on behalf of the Attorney General: his previous good character, his pleas at the first opportunity, the fact that the offences were charged as attempts, there is only limited evidence about what was said to him to encourage him to meet up and (we would add) to expose himself with an erect penis, no child was in fact ever in danger of harm, there is no other material to suggest that he had acted in this way before, he had been punished sufficiently by the consequences of this upon his life generally, in particular given the publicity linked to it. He has now accepted his problem and is actively seeking to address it. Given the contents of the updated probation report, Mr Barton submits that it is in everyone's interest that he is allowed to continue to engage with the appropriate help.[23]We have considered these points. At the core of the reference is the submission that these offences should have been placed at the higher end of the bracket of Category 3 of the Definitive Guidelines, the lowest level of harm. That is because these were attempts. It is necessary to bear in mind that for a completed section 10 offence, causing or inciting a child to engage in sexual activity, Category 3A has a starting point of 26 weeks and a range of a high level community order to three years' imprisonment. For the completed section 15 offence, meeting a child following sexual grooming, Category 3 has a starting point of 18 months' custody and a range of one year to two-and-a-half years' custody.[24]We accept that the incitement in count 1 involved penetration of the vagina with an object, that there was a degree of planning and the offender sent images of his erect penis. It is not in issue that two serious sexual crimes were committed, justifying a sentence of imprisonment, and the offender acknowledged his guilt by his plea. It is also clear that there were factors identified by the Attorney General which would have entitled the judge to conclude that the offender's culpability placed the offending towards the upper level within Category 3 of the guidelines. However, the crimes were charged as attempts and it is also a striking feature of this application that these offences were committed in relation to an entity (Hayley) which did not exist as a person and that this entity had been created by a man pretending to be a 14-year-old girl.[25]While we accept that the absence of actual harm is not the sole criteria by which harm is to be assessed - see Stillwell [2016] EWCA Crim. 1375, at paragraph 35, the facts of this case were highly material to the sentence to be passed. In the case of Copley [2016] EWCA Crim. 894 this court said in relation to a case with some similarities to the present:
"Although, even for an attempt, we accept that the appellant's culpability was high, the level of harm was necessarily restricted because the girl he proposed to meet did not exist and no girl was in fact groomed or at any risk. The images the appellant sent were not sent to or seen by any girl. The fact that, despite the appellant's actions and efforts, no actual grooming of a child was performed, and no harm was or indeed could have been done to any child as a result of those actions, has to be reflected in a substantial discount from the sentence that would have been appropriate for the full offence."
[26]The judge must have taken a starting point for these offences of 27 months before giving appropriate credit for the pleas. In doing so he started at the upper end of the range within Category 3. In our view, that approach was not lenient. He had recognised the particular features to which we have referred and then gave full and appropriate credit for the pleas. Having done so, he suspended the sentence of 18 months. The decision whether to suspend that sentence was a matter for his judgment and we see no proper basis for criticising the exercise of that judgment. We consider that these were proper sentences and we decline to accept the application to refer. Accordingly, we refuse leave to refer the case to the Court of Appeal.