No. 2009/04419/A6
Neutral Citation Number: [2009] EWCA Crim 2437
IN  THE  COURT  OF  APPEAL
CRIMINAL  DIVISION
Royal Courts of Justice
The Strand
London WC2

Tuesday  27  October  2009

B e f o r e:

THE LORD CHIEF JUSTICE OF ENGLAND AND WALES
(Lord Judge)

MRS  JUSTICE  RAFFERTY  DBE

and

MR  JUSTICE  HENRIQUES
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ATTORNEY GENERAL'S REFERENCE No. 72 of 2009

UNDER  SECTION  36  OF

THE  CRIMINAL  JUSTICE  ACT  1988

R E G I N A

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J  K
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Mr J Rees appeared on behalf of the Attorney General

Mr S Smith appeared on behalf of the Offender
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J U D G M E N T
Tuesday  27  October  2009

THE LORD CHIEF JUSTICE:  I shall ask Mrs Justice Rafferty to give the judgment of the court.

MRS JUSTICE RAFFERTY:
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 a sentence which she suggests was unduly lenient.  We grant leave.

2.  Born on 15 March 1988 the offender is aged 21.  On 29 June 2009 at a plea and case management hearing he pleaded guilty to two counts of sexual activity with a child contrary to section 9(1) of the Sexual Offences Act 2003 and a pre-sentence report was prepared.  On 28 July 2009 the Recorder of Middlesborough, sitting in the Crown Court at Teesside, sentenced him on each count to a term of six months' imprisonment concurrent, suspended for two years and with a supervision requirement.  

3.  JD was born on 6 September 1992, so was six months shy of her sixteenth birthday when in September 2008 she and the offender re-kindled an earlier acquaintance.  When she was 12 and he 16 they had briefly gone out together, probably only for a couple of days.  Contact was not maintained.

4.  In February 2008 she saw him at his work in a supermarket and from a friend of hers secured his telephone number.  He and she began to send to each other text messages, and by arrangement met at the beginning of March 2008.  She was 15, as he knew.

5.  At this, their first meeting, he was as she put it "full on", keen to put his hand down her trousers which she did not permit.  He did not want them seen together in public.  Perhaps a fortnight later, once again by arrangement, they met at the local sports centre next to her school.  Their plan was to have sexual intercourse.  On the day, however, finding herself with him in the open air, JD did not wish to have intercourse.  He bought her a soft drink and at his suggestion they made their way to a less public area of her school grounds.

6.  He laid down his jacket.  She repeated her discomfort and reluctance to have intercourse, upon which he said that were she to love him she would agree to it.  He sought to reassure her.  He put on a condom, lay on top of her, took down her trousers and knickers and began to have intercourse.  

7.  After some minutes he asked her to change position to on her knees, but she declined.  He rose, pulled up his trousers, and discarded the condom, by now containing his ejaculate.  He told her to say nothing, she being underage which would lead to trouble for each of them.  They never had sexual intercourse again.

8.  She was to describe their relationship post-event as "on-off" until, some few weeks after it, by text message she told him she wished it to end.  Nevertheless, she went out with him a further three times between May and October 2008.  

9.  By September or October JD discovered that the offender had had sexual intercourse with SJ and on 13 October sent him a text message challenging him to confirm that that rumour was well founded.  He confirmed it.

10.  Later on the same day during further text messages exchanged, JD demanded money as her price for silence.  If he did not pay she would tell the police what he had done.  He pleaded with her not to do so and to give him time until his next wage payment.  She then abandoned her demand and told him she proposed the next day to talk to someone about what had happened.  She did.  She told a female member of staff that she and the offender had had sexual intercourse in the school grounds.  The police interviewed her on 24 October and on 14 November 2008.  In the second exchange she confirmed the offender's account of her demand for silence money and she supplied the information that though she had distanced herself from it, nevertheless he had given her £80.  She had accepted and spent it on clothes.

11.  SJ was born on 15 May 1995 and so in September 2008 was 13 years 4 months.  As a consequence of what JD said to police, SJ was interviewed on 14 November 2008.  She told them that about a week after the beginning of the autumn term she had had sexual intercourse with the offender.  They had first met in the dying days of the summer holiday and soon began to see each other and to exchange text messages.  He knew she was 13.  At their first meeting he asked her to have sexual intercourse with him and when she refused suggested they wait a while.  To this she agreed.  There was a limited number of subsequent meetings at which nothing untoward occurred.  

12.  By their third or fourth meeting outside the same school as that to which JD went, SJ met the offender mid-evening.  He asked her whether she had been drinking and she told him that she had had quite a lot.  She told police that since about 4pm she had, as she was used to doing, drunk three to four litres of cider.  On a scale of intoxication from 1-5, she positioned herself at 3 and knew what she was doing.

13.  The two adjourned to the same spot in which the offender and JD had had sexual intercourse.  SJ was a willing participant in intercourse previously agreed between them.  Though her memory was not sharp she could remember that it took place as she lay on her own jacket and that he used a condom.  She could not recall whose idea it was, nor whether he ejaculated.  Soon after, she discovered that during what she described as a relationship with her, he had cheated JD so SJ ended things between them.

14.  On 27 October 2008 SJ and JD chatted using the internet.  SJ was not pleased that JD had told police of her (SJ's) involvement with the offender.  She wrote that one prompt for agreeing to intercourse with him was her abstinence from it for three days.

15.  Arrested on 20 November 2008, in interview the offender accepted having had sexual intercourse with SJ whom he knew to be 13.  He eventually admitted having had sexual intercourse with JD, knowing her to be 15.  He told of his payment of her blackmail demand.  Both girls, he said, had been willing participants.

16.  The Crown did not suggest either girl had been a virgin.  Chat logs on the internet suggested that each had for some time been sexually active.  Each girl declined to make a victim impact statement.

17.  The offender had no convictions for sexual offences.  He had recent convictions for being drunk and disorderly and for obstructing and assaulting a police constable.  On 30 April 2008, for three offences of criminal damage he was given a Community Order of 12 months with a supervision element.  His offence against SJ put him in breach of it.

18.  The pre-sentence report rehearsed the offender's claim that JD had contacted him by text message seeking sexual intercourse.  He knew that on the evening she and he had intercourse SJ had been drinking and that a 19 year old male known to use young girls for sex had dropped her outside her school.  He used condoms on each occasion and each girl was sexually active.  The author found him unable or unwilling to see SJ as vulnerable, aged 13.  He blamed each girl for the position in which he found himself.  What he had done he did not see as bearing on their future wellbeing.  The author considered him emotionally lonely, prone to blame others for his difficulties and, given his rejection of culpability and the sexual attraction to what she described as children, he would until he mastered his rigid thinking pose a high risk of sexual harm to young females.  The risk of his re-offending on the other hand she thought in general low to medium.

19.  A supplementary report prepared for this court, and dated 8 September 2009, rehearses the offender's change of attitude to his own offending.  He now understands what has happened and is more than willing to address his offending behaviour in order to reduce the risk of any repeat.

20.  The Recorder did not in his sentencing remarks refer to the Sentencing Guidelines Council's work on the Sexual Offences Act 2003 and there is nothing to suggest he was referred to it in dialogue.  In brief sentencing remarks he reminded himself of the courts' duty to protect even promiscuous young girls from themselves, hence the imposition of a prison sentence.  He felt able to suspend it.  He did not say what led him to this conclusion.  He rejected as too vague and impractical the suggested Sexual Offences Prevention Order rehearsed in the pre-sentence report and did not make one even in modified form.

21.  Aggravating features are agreed as: two offences within six months; two victims; premeditation; full intercourse to ejaculation; knowledge that SJ was 13 and affected by drink; breach of a community order; and payment of £80 "hush money".

22.  Mitigating features are agreed as: the use of contraception; the sexual intercourse consensual, albeit a degree of reluctance to be overcome in JD; the offender was only 20; he tendered early pleas of guilty; and he had no convictions for sexual offences.

23.  Her Majesty's Attorney, by way of a request from Her Majesty's Solicitor General, submits that the sentences were unduly lenient as failing to reflect the gravity of the offences, the need to deter, public concern, and the aggravating features.

24.  According to the Sentencing Guidelines Council's work on sexual activity with a child, penile penetration of the vagina should attract a starting point of four years' loss of liberty, with a range of three to seven years.  The Attorney has referred us to two authorities: R v Frew [2009] 1 Cr App R(S) 91 and R v Barrass [2007] 2 Cr App R(S) 1.  Neither is a guideline judgment.  Barrass, aged 26, after a party, when all were drinking, even the young, took a girl aged 14 outside and sexual intercourse took place.  Whether he knew her to be 14 was not clear, but he knew she was under 16 and did nothing to check her age.  He pleaded guilty to sexual activity with a child and was sentenced to four years' imprisonment.  The judge had in error taken a starting point of five years.  Barrass had many convictions, but none for sexual offences and had had a most difficult start in life.  He said that the girl had been the instigator and though he felt guilty, it was because he had betrayed his partner.  The court considered the authorities and in a judgment given by Henriques J quashed the term of four years and for it substituted one of 18 months' imprisonment.

25.  Frew was aged 29 (28 at the time of the offence).  He pleaded guilty to sexual activity with a child.  A girl of fifteen and a half, as he knew her to be, was, as was he, a black belt in a martial art.  After a party they had sexual intercourse and she confessed to having had a "crush" on him.  She had told a friend that she had left her knickers and a condom in his room so as to prompt a sundering of his relationship with his girlfriend, hoping that she would take her place.  She became pregnant and had a late abortion.  Frew had convictions as a teenager but none since, and none for sexual offences.  He had not lost his liberty.  He accepted full responsibility.  He had been affected by drink and so did not remember the sexual intercourse, but never denied it.  He failed to discourage her, though he knew she fancied him.  He was ready to address his offending behaviour.  David Clarke J, giving the judgment of the court, referred to Barrass whose facts were similar to Frew, save for the pregnancy and the attendant trauma.  However, had what occurred in the case of Frew been but five months later, no offence would have been committed.  David Clarke J considered the Sentencing Guidelines Council's advice and said:

		"For these types of offence more than any others, the sentencing process allows for flexibility and variability.  The sentencing starting points and sentencing ranges are not rigid and movement within and between ranges will be dependent upon the circumstances of individual cases, and in particular the aggravating and mitigating factors that are present."

The court concluded that a sentence of two years' imprisonment was manifestly excessive before reducing it to 18 months.

26.  These are sentencing exercises renowned for their difficulties.  The court must consider the victim and the effect upon her or him of the criminal conduct, consider the offender and his or her circumstances, and finally, the public interest in the marking of disapprobation.  Whilst it is often referred to as a balancing exercise, there are many instances when balance in the sense of equilibrium cannot be achieved.  It is unfortunate that the Recorder was neither referred to nor chose to mention the work of the Sentencing Guidelines Council.  It is not in issue that he departed from its advice.  He remained silent too as to why he felt it possible to suspend the term of imprisonment.  In the result this court is obliged to attempt to deduce why he took the stance he did and then go on to consider whether it were justified.  

27.  JD and SJ were not naive, nor (in one sense of the word) innocent.  The Recorder was entitled to conclude that they were in modern parlance streetwise.  They were, however, both young and both entitled to the protection of the courts, even were their own behaviour unattractive.  The offender was himself young (20 at the time) and without previous history of like offending.  He had to persuade JD away from her initial reluctance and to persuade SJ away from her initial desire to slow things down.  He was alert to the risks in what he had done, hence his adjuration to JD that she tell no one.  Though she told him after intercourse that she did not wish to continue their relationship, in what he might have seen as a conflicting message she nevertheless went out with him a few more times -- a factor which in our judgment gives some colour to their relationship (if that be the appropriate noun).  She was more than capable in at least one way of expressing herself: she blackmailed him.

28.  SJ, even younger at 13 than JD at 15, did not complain to the police or to anyone else, save to JD, and then only because JD had disclosed what had happened between SJ and the offender.  He knew, however, that she was a 13 year old in drink, a 13 year old whom he had already had to persuade to sexual intercourse. 

29.  It will be readily apparent that this was indeed a difficult sentencing exercise.  There were two victims, each (although not inexperienced in sexual terms) entitled to protection.  That said, this was not an instance of preying on, or grooming, youngsters.  There is nothing to suggest that the offender was any more sexually experienced than was either girl.  The circumstances include blackmail by one and the use of the offender to slake her own sexual appetite by the other.

30.  We have concluded that this sentence is undoubtedly lenient but not unduly so.  That said, we can understand, albeit it was unexpressed, why the Recorder felt able to suspend the term of imprisonment.  

31.  We have reflected on two further matters.  The first is the Recorder's decision not to impose a Sexual Offences Prevention Order.  We can understand why he rejected that proposed in the pre-sentence report.  In our judgment it is not necessary on these facts to impose one at all.

32.  We turn finally to a comment at the beginning of the original pre-sentence report which, under the heading "Sources of Information", reads:

		"Detective Constable [B] from the Public Protection Unit was present during the interview."

There was only one interview with the offender to found the report.  This is the first time that any member of this court has heard of a police officer sitting in for the entirety of an interview conducted by a member of the Probation Service so as to provide pre-sentence reportage to a judge.  We emphasise that we have not heard any justification of the practice, nor do we understand how widespread or otherwise it may be.  We say therefore simply this.  If it is a practice which is beginning to find regularity, then we should like to be assured of why it is thought appropriate and at what level.