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	England and Wales Court of Appeal (Criminal Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Criminal Division) Decisions >> Sargent, R v [2018] EWCA Crim 2194 (21 August 2018) URL: http://www.bailii.org/ew/cases/EWCA/Crim/2018/2194.html Cite as: [2018] EWCA Crim 2194

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IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice Strand London, WC2A 2LL
		21 August 2018

This transcript is Crown Copyright. It may not be reproduced in whole or in part other than in accordance with relevant licence or with the express consent of the Authority. All rights are reserved.

WARNING: Reporting restrictions may apply to the contents transcribed in this document, particularly if the case concerned a sexual offence or involved a child. Reporting restrictions prohibit the publication of the applicable information to the public or any section of the public, in writing, in a broadcast or by means of the internet, including social media. Anyone who receives a copy of this transcript is responsible in law for making sure that applicable restrictions are not breached. A person who breaches a reporting restriction is liable to a fine and/or imprisonment. For guidance on whether reporting restrictions apply, and to what information, ask at the court office or take legal advice.

LORD JUSTICE SIMON:

THIS PAGE IS NOT INTENTIONALLY LEFT BLANK

1. The provisions of the Sexual Offences (Amendment) Act 1992 apply to this offence. Under those provisions, where a sexual offence has been committed against a person, no matter relating to that person shall, during that person's lifetime, be included in any publication if it is likely to lead members of the public to identify that person as the victim of the offence. The prohibition applies unless waived or lifted in accordance with section 3 of the Act.
2. This is an application, brought by the Solicitor General, under section 36 of the Criminal Justice Act 1988, for leave to refer a sentence which he considers to be unduly lenient. The sentence was passed on the offender on 29 June 2018 in the Crown Court sitting at Guildford. On 29 May the offender had pleaded guilty to five offences, counts 2, 6, 7, 8 and 9 of sexual activity with a child under the age of 16, contrary to section 9 of the Sexual Offences Act 2003. The offences involved digital penetration of the victim's vagina, penile penetration of the vaginal and penile penetration of the mouth. In addition, he pleaded guilty to a single offence (count 5) of causing or inciting a child to engage in sexual activity involving digital penetration of the vagina, contrary to section 10 of the 2003 Act.
3. On 29 June he was sentenced by Mr Recorder Hardy QC to concurrent terms of 2 years' imprisonment, suspended for 2 years with three requirements. First, to perform 150 hours of unpaid work. Second, to complete a rehabilitation activity requirement for a maximum of 35 days and third, to participant in an accredited programme for a maximum of 100 days. The Recorder also made a sexual harm prevention order for a period of 10 years in terms that do not call for further comment.
4. The offender is now aged 23. The offences took place from about January 2015 until June 2016. He was 19 when the offending began, and his victim (who we will refer to as "S") was aged 14. S was the cousin of the offender's then girlfriend, A. Although the victim was a willing participant in the sexual relationship, the offender was in control of the trajectory of what developed into a secret and unlawful relationship.
5. It began with kissing, but soon progressed to the offender penetrating the victim's vagina with his fingers, the exchange of sexually explicit text messages in which the offender encouraged S to masturbate and the offender soliciting explicit images of her. Thereafter, they solicited sexual images of each other with the offender introducing her to pornography. When S was 15 and the offender was 20 they engaged in unprotected vaginal intercourse on three occasions. The victim also performed oral sex on the offender on numerous occasions and occasionally performed oral sex on S. All the sexual activity took place in the home of the offender's girlfriend.
6. He had first met S in 2012 when she was 11 and he was 16 or 17. When the offences came to light in June 2016, the offender had been in a relationship with his girlfriend, A, for approximately four-and-a-half years. Owing to his relationship with A he was a frequent visitor at her family home and was treated as part of the family. The victim was A's cousin and she too was a frequent and welcome visitor to A's home. Between 2012 and the end of 2014, the offender and the victim had an apparently normal relationship. However from at least January 2015, the nature of the relationship changed. This coincided with the victim forming a teenage crush on the offender and the offender's relationship with A beginning to fail.
7. In November 2014 the offender and the victim held hands when in the back of a car. From the end of November 2014 the offender and S (now aged 14) began to exchange messages via WhatsApp and other social media. They said how much they enjoyed seeing each other and expressed their love for each other, questioning what kind of love it was.
8. They kissed for the first time in January 2015. S was sleeping on a mattress in the sitting room and the offender slept next to her. A was also in the room at the time. The kiss was surreptitious and he felt her breasts under her top and penetrated her vagina with one or two fingers. That gave rise to the charge under count 2.
9. Afterwards they discussed via WhatsApp how "amazing" the kiss had been. The offender expressed regret that they had kissed but if the regret was genuine, it was short lived because they kissed again on another occasion. Again, when A was asleep. Thereafter they would kiss whenever they could.
10. In March and April 2015 they exchanged messages in which they expressed their fear of being discovered, and S discussed how she felt when the offender had penetrated her vagina with his fingers. He then began to encourage her to masturbate. By mid-April the content of the messages showed that the relationship had progressed to her touching his erect penis.
11. Each of them engaged in sexual text messaging and they began exchanging sexually explicit images of themselves via Snapchat which allows for images to be sent to a recipient for a few seconds before automatically deleting. S willingly sent a topless image of herself and then images of her vagina at the offender's request. He in turn sent her images of his erect penis.
12. By May 2015 the offender began to encourage her to watch pornography and sent her messages containing hyperlinks to websites on the Internet. He then asked her to send him a link to "something you think I'd like" and to send him an image, still or moving, of her masturbating. She complied with this request.
13. On 21 May 2015 the victim sent messages that revealed that she had touched the offender's erect penis (count 7). On 22 July the offender sent a message saying: "Can I see your fingers inside of you" (count 5) and she sent him an image. This pattern of conduct and messaging each other, while masturbating, telling each other what they were doing and how much they wanted each other to be doing it, as well as watching pornography and requesting indecent images, became routine.
14. On 29 August 2015, S sent a message to the offender that she wanted to suck his penis. Two days later they mentioned, for the first time, the possibility of having vaginal intercourse, and the offender told her in graphic terms that he wanted this too and to have his penis sucked by her. She then sent him an indecent image of herself by Snapchat before commencing a FaceTime session.
15. They occasionally sent messages saying they wanted to stop. By the end of September 2015 S believed that she was in love with the offender and seeing him with his girlfriend A made her jealous. Ten days later they began messaging again in the same vein as before.
16. In December 2015 the offender told S how much he liked her touching his penis and how next time "it" (his penis) would be in her mouth.
17. In the New Year (2016) the victim messaged the offender indicating that she wanted to see him the following weekend and stay with him. His reply indicated, in explicit terms, his wish for vaginal intercourse which she replied "amazing plan".
18. In early February 2016 they had vaginal sexual intercourse for the first time (count 8). The victim was now 15 years and 3 months old and the offender was 20 years and 6 months old. He was sleeping in A's bedroom, while A and her brother were downstairs.
19. S went to A's bedroom in the night and they had oral sex each on the other. They then had sexual intercourse without using contraception. The victim then performed oral sex on the offender until he ejaculated on her face (count 9).
20. In messages exchanged afterwards each expressed regret at what they had done and they decided to stop. However, on 21 February 2016, the victim suggested anal sex and the offender commented that he had taken her virginity. At the end of March 2016 they had vaginal sexual intercourse again in the early hours of the morning. The offender was in bed with A in her bedroom and the victim was sleeping downstairs in the living room. A's younger brother was also asleep in the living room. The offender went downstairs and initiated intercourse with S. He did not use contraception and ejaculated when she performed oral sex on him. Afterwards he went back upstairs to join A in her bed leaving the victim feeling used.
21. There was one further incident of the victim performing oral sex on the offender which happened in A's bedroom before the offender's criminal conduct was discovered. On that occasion the offender ejaculated into his own hand. The offender penetrated the victim's vagina with his fingers on multiple occasions from February 2016 (count 6).
22. The relationship was discovered on 9 June 2016. One of A's brothers walked into his sister's bedroom without knocking and discovered the offender with his penis semi-erect and S on her hands and knees. They had just finished having vaginal sexual intercourse. The offender told A's brother that it was "not what it looked like". Unsurprisingly he was unceremoniously ejected from the house pleading with A's brother not to tell his mother.
23. During the afternoon of 9 June and on the following day, the offender telephoned his girlfriend A in tears and confessed that he had been having sex with S behind her back. He apologised profusely. However, he also texted S and told her to deny everything and to delete all of the messages they had sent to each other, although as we have noted the Snapchat images had automatically deleted.
24. Over several weeks the families of A and S met to decide what to do about the discovery. Initially they decided not to report the offending but changed their mind. On 6 September they reported what had occurred to the police and an investigation began.
25. The offender was arrested on 18 October 2016 and interviewed. He remained silent throughout.
26. On 20 January 2017 he was interviewed again. He confirmed that he knew the victim and that he had met her through his relationship with A. He said he had formed a friendship with her when she was 14 and he was the only friend she had. He said that she used to confide in him. When asked whether the relationship had changed into a sexual relationship, he stopped answering questions. He claimed not to remember the messages he had exchanged with the victim even when they were read out to him, and said he could not bear to hear them. He admitted kissing the victim in January 2015 but as the interview went on and the messages were read out he became distressed.
27. The victim provided a victim impact statement in which she said, among other things:

I wish it had never happened ... My heart aches because this is my first everything and it has been taken away.

28. She also described how it affected her relationship with her family and its effect on her own life:

When I think about the future I think I will get better but there are times at school, especially during sex education lessons and being told saying 'No' is OK. In the lessons I feel like I am alone because no one has experienced what I have and no one knows what happened.

I have not had a proper boyfriend but I do know they are not all like Charlie. I will steer well clear of boys like him but I believe that I will find a boy who is not like him.

29. The offender had no previous convictions, reprimands, warnings or cautions recorded against him. He was a man of good character. The Recorder had a pre-sentence report in which the maker of the report made the following observations about the offender:

There is a clear sexual interest in pubescent females... placing his own needs and desires above those of [S]... There is a clear disregard for the harm caused to [S]... [S] is likely to suffer harm on a long-term basis in relation to forming appropriate adult relationships and being able to trust males ...

30. The report concluded that the offender presented a high risk of serious harm to children by the commission of sexual offences, but that the risk might be lowered by a treatment programme for which he was assessed as suitable. The writer of the report had some concerns because although he had presented well to her in interview, he presented earlier to a colleague who attended his home as arrogant and lacking in remorse.
31. At the sentencing hearing it was submitted on the offender's behalf that the hostility to this colleague had been initiated by the offender's mother. However, the incident caused the writer of the report to question the offender's "level of respect for the conditions and restrictions imposed on him and whether he would be likely to engage effectively". She felt that the offender might have been seeking to manipulate her by falsely representing himself in a way that was inaccurate.
32. When it came to the sentence the Recorder referred to the victim impact statement and observed:

... fortunately your offending behaviour has not had too great a deleterious effect upon her...

33. To the extent that there was no serious psychological harm, as described in the guideline, and that S had shown a remarkable degree of resilience and maturity, we would agree with this observation. However, these offences are designed to protect children and they are damaging to the welfare of children in ways that cannot always be immediately recognised.
34. The offender did not plead guilty at the first opportunity. On 3 November 2017 a defence statement was served in which he denied each of the offences and claimed that the victim had invented the allegations of sexual activity owing to a teenage crush. He claimed that the WhatsApp messages represented imagined fantasies as opposed to the reality of what happened and denied that A's brother had discovered him "in the act".
35. On 29 May 2018 the case was listed for trial before HHJ Black, and the offender pleaded guilty to counts 2, 5, 6, 7, 8 and 9 on a full-facts basis. There had been no earlier indication that he had intended to plead guilty.
36. On 29 June 2018 the Recorder passed the sentence that we have described. In addition, an adverse costs order made in the sum of £1500 with a victim surcharge.
37. In passing sentence, the Recorder observed that although this was neither a defence nor mitigation, the victim had been responsive to the offender's sexual approaches and consequently, to the extent that there had been grooming, it had been "minimal". We do not consider that this necessarily followed. There was a 5-year difference in their ages and this was likely to be reflected in their emotional maturity. We will return later in this judgment to the question of grooming.
38. For the Solicitor General, Mr Schofield submits that the Recorder erred in not sentencing on the basis that it was a category 1A offence as set out at page 45 of the Definitive Guidelines for offences under section 9 and 10 of the 2003 Act. It was plainly category 1 harm, since there had been penetration of the victim's vagina and penile penetration of her mouth. It was category A culpability, he submitted, because of the offender grooming the victim and soliciting sexual images from her. In any event, even if the culpability factors were of an insufficient degree to place the offending clearly within category A, there were sufficient significant aggravating factors to justify moving outside category B, as indicated on page 48 of the guidelines. There was the period over which the offending took place and the fact that the offender had ejaculated twice. One of the offences had taken place in a room where A's brother was sleeping. The offender had instructed S to delete messages they had exchanged and had told her not to tell anyone.
39. Mr Schofield further submits that although the Recorder was right to pass concurrent sentences for each offence, the overall sentence should have reflected the number of counts and the fact that counts 5, 6, 7, 8 and 9 were "multiple offending counts". Finally, he draws attention to the lateness of the plea and to the consequent limited credit to which the offender was entitled to that plea, not more than 10%.
40. For the offender Mr Oliveira-Agnew makes the broad submission that the Recorder had considered all the matters that were relevant to the sentence. He had formed a view of those matters to which he was entitled and passed a proportionate sentence.
41. To the extent that there were two factors in dispute (the grooming and whether the victim felt used), he submitted as to grooming, that was this was a matter that was considered in some detail by the Recorder, and he drew attention to the fact that there had in fact been a 2 years' platonic relationship between them in a familial relationship which had developed. He submitted this was not a case of grooming. To the extent that the victim felt used, although there were images exchanged they had been sent by Snapchat which had been deleted automatically. None was ever found by the police.
42. Mr Oliveira-Agnew submitted that the Recorder had concluded that the correct characterisation of the offence was category 1 harm and category B culpability. On that basis the starting point was a term of 12 months.
43. He also pointed to this passage in the sentencing remarks, at page 53 of the transcript:

... I am unpersuaded that this case does in fact and law fall into what is called category 1A for sentencing purposes. If I am wrong in that, I regard this as a case where the interests of justice in the broadest sense permit me to step outside the guideline and to impose upon you a lower sentence than would otherwise be the case. I do so for the reasons I have already set out, and because I do not believe it is in the public interest for you to serve a sentence of imprisonment when you are of hitherto good character, are employed in a professional capacity, have recently been promoted in your employment, and can be required by order of this court to attend rigorous programmes designed to ensure your better behaviour and to ensure that there is no repetition of this conduct.

44. The Recorder noted that there were sometimes cases before the court that are borderline cases so far as sentencing categories are concerned and, after referring to the offending not having too great a deleterious effect on the victims said this:

... so I repeat, should these sentencing remarks be read elsewhere ... either this case just does not get into category 1A, or if it does I regard the rigour of the sentencing range unjust...

45. Mr Oliveira-Agnew also submits that the pre-sentence report indicated that there was a low risk of re-offending and that there was nothing in any of the reports that indicated that the offender had a particular interest in young girls rather than specifically S. This was, he submitted, a one-off offence. Finally, he submitted that if the sentences were unduly lenient there should be no alteration to the sentence.
46. We have considered these submissions. By reference to the guidelines for section 9 and section 10 offences, this was plainly harm category 1: there was penetration of the vagina and penetration of the mouth. There is however an issue as to whether it was an offence of greater culpability A or lesser culpability B. So far as the factors which would apply here, culpability A may be characterised by "a significant degree of planning, grooming behaviour used against the victim" and "sexual images of the victim recorded, retained, solicited or shared". The question whether the culpability falls within category A or B makes a considerable difference. If the offending is properly categorised as category 1A offending the starting point is 5 years, with a range of 4 to 10 years. If it is categorised as category 1B offending, then the starting point is 1 year with a range between a high level community order and a term of 2 years' custody. There is no overlap in the range. As we have noted, the Recorder concluded that the offending did not fall within category 1A but that if it did the interests of justice permitted him to pass a sentence outside the range.
47. In our view, the offending was somewhere between category A and B in terms of culpability. The offender encouraged his victim to engage in the sexual activity and at least to that extent there was an element of grooming, albeit this was after a 2-year period of non-sexual friendship. The relationship was also marked by the taking of indecent images. The Recorder observed that the exchange of "photographs of an intimate nature ... is a common phenomenon nowadays among young people." However, that observation has to be seen in the light of the disparity in the ages of the offender and his victim.
48. To the extent to which these matters bore on his culpability must also be assessed by reference to other higher culpability factors set out in the guidelines, for example: a defendant acting together with others to commit the offence and the use of threats including blackmail. There was nothing of comparable seriousness here. However, there were, as the Solicitor General submits, a number of aggravating circumstances, most materially ejaculation and the risk of pregnancy such that S was required to go with her mother to seek assistance on the afternoon of 9 June 2016 from a chemist. There was also the extended period over which the offending took place between 21 May 2015 and 9 June 2016, and the number of offences which took place during that period. There was against that the mitigation he was a man of previous good character and his expressions of remorse were regarded by the Recorder as being genuine. Importantly there was also belatedly his plea of guilty, albeit on the day of trial which entitled the offender to at least some credit.
49. The first question then is whether the Recorder was right to impose a custodial sentence of a length which allowed him to suspend its operation. In our view, he was not. If he gave maximum credit for the plea of 10%, he must have adopted the sentence of 27 months (2 years and 3 months) before credit for the plea. In our view, such a sentence was too short.
50. The appropriate starting point should, in our judgment, have been a sentence of more than 3 years, and credit for the personal mitigation would have reduced the sentence but not to 27 months. It follows that the sentence passed, although it provided for compliance, with onerous conditions, was, in our view, an unduly lenient sentence. We have nevertheless concluded that we should not increase the sentence in the circumstances of the case. The Recorder went carefully through the sentencing exercise. He recognised that he might be thought to be sentencing outside the guidelines as we have so found. But his carefully articulated reasons for passing what was a merciful sentence, to which have referred in part, are entitled to a measure of respect. Accordingly, although we grant leave to refer this matter to this court we do not vary or increase the severity of the sentence.