R v M
| Jurisdiction | England & Wales |
| Judge | The Lord Burnett of Maldon,Mrs Justice Cutts DBE,Mrs Justice Tipples DBE |
| Judgment Date | 30 April 2020 |
| Neutral Citation | [2020] EWCA Crim 592 |
| Court | Court of Appeal (Criminal Division) |
| Docket Number | Case No. 2020/01046/A2 |
| Date | 30 April 2020 |
[2020] EWCA Crim 592
THE LORD CHIEF JUSTICE OF ENGLAND AND WALES
( The Lord Burnett of Maldon)
Mrs Justice Cutts DBE
and
Mrs Justice Tipples DBE
Case No. 2020/01046/A2
IN THE COURT OF APPEAL
CRIMINAL DIVISION
ATTORNEY GENERAL'S REFERENCES UNDER SECTION 36 OF THE CRIMINAL JUSTICE ACT 1988
Royal Courts of Justice
The Strand
London
WC2A 2LL
Mr B Lloyd appeared on behalf of the Attorney General
Mr R Morgan-Jones appeared on behalf of the Offender
THE LORD CHIEF JUSTICE:
This is an application by Her Majesty's Solicitor General, under section 36 of the Criminal Justice Act 1988, for leave to refer to this court a sentence which he considers to be unduly lenient.
The offender is Christopher Manning. He is aged 49 years, having been born on 30 th June 1970.
On 24 th February 2020, in the Crown Court at Bristol, the offender, who had previously pleaded guilty to four counts of sexual activity with a child, contrary to section 9(1) of the Sexual Offences Act 2003 (counts 1 to 4), and to one count of Causing or inciting a child to engage in sexual activity, contrary to section 10(1) of the same Act (count 5), was sentenced by His Honour Judge Lambert to a suspended sentence order of 12 months' imprisonment, suspended for 24 months. He imposed a tagged curfew for nine months between the hours of 9pm and 6am, with the purpose significantly to restrict the offender's liberty. In addition, he imposed a Rehabilitation Activity Order for 30 days, which included one-to-one work with an offender manager, and a requirement that the offender undertake the MAP for Change Treatment Programme. A number of ancillary orders were made, some of which we mention. A restraining order was imposed for five years which prevents the offender contacting his victim or her family. A strict Sexual Harm Prevention Order was also imposed for seven years which, amongst much else, provides comprehensive protection for young people and also inhibits the freedom of the offender to use his computer or other devices in the ordinary way. He was ordered to pay £7,500 in compensation, together with £1200 towards the costs of the prosecution. Both sums were paid within a fortnight.
The victim has statutory anonymity for life. There must be no reporting of this case which is likely to lead to her identification.
Before turning to the facts, we shall identify the principal issue that was raised before the learned judge at the sentencing hearing and was advanced as the main argument in the Final Reference, dated 20 th April 2020. It is no longer pursued.
The offence of causing or inciting a child to engage in sexual activity covers potentially a very wide range of conduct and outcomes. The child in this case was 15 years old. The offender was charged with and pleaded guilty to inciting her to have sexual intercourse with him. No sexual intercourse occurred. Before the judge, the prosecution argued that for the purposes of the relevant definitive guideline, the incitement offence should be located within category 1 for harm. That is described in the guideline as:
“
• Penetrating of vagina or anus (using body or object)
• Penile penetration of mouth
In either case, by, or of, the victim”.
It was agreed, for reasons to which we shall return, that culpability fell within category A in this case. In those circumstance, the prosecution argument was that the starting point for the incitement count was five years' custody, with a category range of four to ten years' custody. The contention advanced was that the fact that no such activity occurred should be treated only as a mitigating factor.
The judge emphatically rejected that submission. He concluded that it fell within category 3, namely, “other sexual activity”, which, when linked with culpability at level A, has a starting point of 26 weeks' custody and a category range of a high-level community order to three years' custody.
The principal authorities which bear on this question, most unfortunately, were not drawn to the attention of the judge or set out or referred to in the Final Reference. We provided them to counsel in advance of this hearing. Attorney General's Reference No 94 of 2014 (R v Baker) [2014] EWCA Crim 2752; [2016] 4 WLR 121, concerns an offender who incited a 13 year old girl to engage in sexual activity, namely, penetration of her mouth with his penis. That sexual activity never took place. The issue we have identified was raised in the course of that Reference. In giving the judgment of the court, Sir Brian Leveson (President of the Queen's Bench Division) said this at [34]:
“In our judgment, what happened here did not fall within category 1 at all. In the circumstances, because the offending did not proceed beyond incitement, it was ‘other sexual activity’ within category 3. That accords not only with the judge's rejection of the suggestion that the offender's behaviour justified a starting point of five years but also provides appropriate headroom between the sexual suggestion and any actual activity without necessarily engaging upon the exceptional basis for departing from the Guideline.”
That offence was a single, high culpability offence. The offender had been sentenced to 180 days' imprisonment, which this court considered to be “entirely appropriate”.
In R v Cook [2018] EWCA Crim 530; [2018] 2 Cr app R(S) 16, the same point was argued, and the position was re-affirmed by Treacy LJ in giving the judgment of this court at [8] by reference to Baker and to a number of other cases, where the same point had been considered.
Mr Lloyd, who appears on behalf of the Solicitor General, realistically recognises that in the face of the weight of that authority, the first and principal argument advanced on behalf of the Solicitor General in the Final Reference cannot be sustained. In the alternative, he submits that the custodial term arrived at by the judge was substantially too short and, in any event, should have been longer than two years, even taking account of mitigation and guilty pleas. In those circumstances, he submits, the question of suspending the sentence should not have arisen.
The Facts
The girl and the offender met through their shared interest in darts. She was and is a talented darts player. She met the offender in October 2017 at a competition in which both were competing. At that time she was only 14 but, because of her exceptional skills as a darts player, she was playing in an adult team. The offender was then aged 47. The girl reached her fifteenth birthday on 15 th July 2018. He became attracted to her. In September 2018, he asked her out via a text message. He had already told her that he “fancied” her.
On Sunday 29 th September 2018, they arranged to meet, alone, at a social club. The girl did not tell anyone that she was meeting the offender. On that occasion, they kissed four or five times. It is that conduct which is comprised in count 1.
A week later, the offender arranged to meet the girl on an industrial estate. Once more, no one knew she was there. Again, they kissed. On this occasion, the offender placed his hand on the girl's breast, over her clothing. That is the conduct comprised in count 2.
They arranged to meet again on Friday 12 th October. By this time, the offender had sent texts which both understood to refer to the possibility of penetrative sex. On that Friday, the offender again kissed the girl and placed her hand over his clothing, on top of his erect penis. That conduct comprised count 3. She withdrew her hand and “felt awkward”.
That evening, further messages were exchanged during which the offender explained how much he had enjoyed the touch from her. The following morning, at the offender's request, the girl sent him a picture of herself in a bikini.
Later that day, they met once again at the industrial estate. They kissed and the victim placed her hand once more on the offender's erect penis through his trousers. That was the conduct comprised in count 4.
By this time, the girl's parents were concerned that something was wrong as a result of her odd behaviour at home. They tracked the location of her mobile phone and followed her to the industrial estate. They came across their daughter with the offender in his car. He drove off, but later stopped to let the girl out.
The following day, the girl provided a detailed video-recorded statement of what had been going on.
Count 5 related to the...
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