Attorney General's Reference No. 39 of 2003 (Michael Anthony Wheeler)
| Jurisdiction | England & Wales |
| Judge | Lord Justice Kay |
| Judgment Date | 15 October 2003 |
| Neutral Citation | [2003] EWCA Crim 3068 |
| Court | Court of Appeal (Criminal Division) |
| Docket Number | Case No: 200303677 A1 |
| Date | 15 October 2003 |
[2003] EWCA Crim 3068
IN THE COURT OF APPEAL (CRIMINAL DIVISION)
REFERENCE BY THE ATTORNEY GENERAL
UNDER S. 36 OF THE CRIMINAL JUSTICE ACT 1988
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Kay
Mr Justice Poole and
Mr Justice Treacy
Case No: 200303677 A1
Mr D Perry and Ms M Cumberland instructed for the Attorney General
Mr K Khalil QC instructed for the Offender
This is an application by H M Attorney General to refer to the court a sentence that he considers to be unduly lenient pursuant to Section 36 of the Criminal Justice Act 1988. We grant leave.
The offender is Michael Anthony Wheeler. He is now aged 36 and was 34 or 35 when the various offences with which this case is concerned were committed. On 14 February 2003 he admitted a number of offences of unlawful sexual intercourse with two young girls and of indecent assault upon them.
The first girl to whom we shall refer as K was aged 13 at the time and the offender admitted 3 offences of unlawful sexual intercourse with her and 3 offences of indecent assault upon her. The second girl to whom we shall refer as C was also 13 at the time of the offences. The offender admitted 2 offences of unlawful sexual intercourse in respect of her and 3 offences of indecent assault upon her.
The offender's guilty pleas were entered in the Crown Court at Norwich and he was sentenced on 6 June 2003 by His Honour Judge Curl to an extended sentence of 5 years under Section 85 of the Powers of Criminal Courts (Sentencing) Act 2000 comprising a custodial term of 3 years imprisonment and an extension of 2 years to the period during which he would be under licence. The custodial period was made up of 15 months imprisonment for each of the unlawful sexual intercourse offences in respect of K to run concurrently with one another and 3 months imprisonment for each of the indecent assault offences in respect of K again to run concurrently with one another but to run consecutively to the 15 month sentences making 18 months in total in respect of that girl. The offences in relation to C were treated in like manner again giving a total of 18 months in respect of her. The two periods of 18 months were ordered to run consecutively to one another thus the total of 3 years to which we have referred was achieved.
The offences arose out of conduct of a kind that represents a new development in the way in which older men interested in younger girls can make contact with them. In circumstances with which we shall deal more fully, the offender had an interchange with K via an internet chat room and befriended her in that way. With complete justification such conduct causes particular concern to the public at large because of the difficulty for parents which it makes in maintaining a proper control over such access to their children. The fact that that access usually takes place in their home makes it the more serious because parents are entitled to feel that their child is safe when they are within the home.
The contact between K and the offender via the internet chat room started in January 2000 when she would have been just 11 and he 32 nearly 33. Each provided the other with false information about their age. She claimed to be 16 and he lied to her that he was 19. Over the following 18 months their internet relationship continued upon that basis and included conversation about sexual topics.
In the summer of 2001 they arranged to meet for the first time and both realised upon meeting that the other was not of the age that they had represented. The offender in particular realised that the girl was significantly younger than 16. There followed a series of meetings between them. The offender treated K to gifts and outings and she became emotionally attached to him and trusted him. She began to look upon him as a boyfriend. Not long after she had had her 13 th birthday in January 2002 the offender initiated sexual contact with her, which led on quite quickly to sexual intercourse. The first time was in the back of his car in a garage on top of a blanket. She was not surprisingly a virgin at the time. She had not particularly wanted to go as far as having intercourse, but she did consent to it. Intercourse between the two of them took place thereafter on at least 6 occasions prior to the offender's arrest on 21 October 2002.
In addition to the acts of sexual intercourse, there was further and more frequent sexual activity between them. Sometimes he would ask her to masturbate him and she would oblige. She also performed oral sex upon him. This would occur in the car, in his office, in the park or elsewhere and sometimes it happened in the presence of K's friends who were of a similar age and who watched.
K frequently lied to her parents about where she was and did not tell them she was seeing the offender or anyone of his age but she did tell them that she had a boyfriend. On the weekend of 19/20 October 2002 the offender invited K to his father's house as the father was away for the weekend. She accepted, telling her parents that she was going to stay with a friend. They had sexual intercourse twice and after the second time he asked her to have a bath. Her father had, however become suspicious that she was not telling the truth about what she was doing and who she was seeing and so he went to the police after making a number of calls to investigate.
The offender was arrested on 21 October. In interview he denied having had any sexual contact with K or any other young girl. He agreed though that he had met a number of girls via an internet chat room and that he had pretended to be in his late teens but he suggested that the girls had placed pressure on him to continue.
In a later victim impact statement K described how she felt her innocence had gone and that she had changed as a result of the offender's conduct. She had lost a lot of her friends and found it difficult to relate to boys anymore.
C met the offender when she was 12 years old in the Autumn of 2001. On that occasion he was with K in an adventure playground. On some occasions prior to C's 13 th birthday in June 2002 she witnessed the offender and K kissing and was encouraged to notice that he had an erection. After her 13 th birthday, when she had made it clear that she had not had any sort of sexual encounter before, the offender initiated sexual conduct with her asking her to masturbate him. She agreed to do so and he ejaculated. The offender then telephoned C and sent her text messages, knowing that she was a virgin, proposing that they "went out together" without K's knowledge. C had been told by K that she had had sexual intercourse with the offender. He asked her whether, if she were to have sex, she would choose to do it with him. She agreed that she did trust him and eventually she agreed to have sex with him in his car in his garage. This had hurt her and she had asked him to stop, which he did. 2 or 3 weeks later she had further partial intercourse with him and then on the 3 rd and 4 th occasions there was full penetration. There was another occasion when he had asked her to perform oral sex upon him, telling her that it was not bad and that K had done it. She was not at all anxious to do it, but he kept asking and eventually, after they had been kissing, he pushed her head down so she did as he asked on the one occasion. Despite her reluctance in this regard, it was accepted that the act was one to which she had consented. Her statement described how the offender had the habit of wiping his penis with a tissue after he ejaculated and throwing it to the side in the garage. She also like K spoke of being given presents by the offender. In her case there had never been any other girls present when C was involved in sexual activity with the offender. The Attorney General points out that this was consistent with his desire to keep his contact with C a secret from K. C's victim impact statement revealed that she had experienced emotional problems in her life after these sexual experiences with the offender and had received counselling as a result.
C told the police of the offender's sexual contact with her after the offender was arrested. Because of her description of events in relation to the tissues, his garage was searched and tissues were indeed found. DNA found on those tissues could be matched both to the offender and to C.
The indictment charged the offender originally with raping K and C, but at a pre-trial hearing on 14 February 2003 the prosecution agreed to accept the pleas which we have earlier outlined.
On behalf of the Attorney General it is submitted that there were a number of aggravating features present:
i) The offender preyed on two victims.
ii) Both victims were vulnerable young girls.
iii) The offences were repeated and persisted in over 9 months in K's case and 4 months in C's case.
iv) Some of the indecent assaults on K took place in the presence of other young girls.
v) The offender on occasions had sexual intercourse without protection.
vi) The offender ejaculated in K's mouth during oral sex.
vii) The nature of the offender's relationship with both victims was such that he planned and set about deliberately grooming and enticing them towards sexual intercourse in the knowledge that they were virgins.
viii) The offender was considerably older and more experienced than the victims.
It is accepted that there were a number of mitigating features present. The first is that the offender pleaded guilty albeit not at the first opportunity. The Attorney General points out that the prosecution had by...
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