No. 2008/02044/A2

Neutral Citation Number: [2008] EWCA Crim 1383
IN  THE  COURT  OF  APPEAL
CRIMINAL  DIVISION
Royal Courts of Justice
The Strand
London WC2

Wednesday 18 June 2008

B e f o r e:

THE LORD CHIEF JUSTICE OF ENGLAND AND WALES
(Lord Phillips of Worth Matravers)

MR  JUSTICE  GOLDRING

and

MR  JUSTICE  PLENDER

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ATTORNEY GENERAL'S REFERENCE Nos. 20 of 2008

UNDER  SECTION  36  OF

THE  CRIMINAL  JUSTICE  ACT  1988

R E G I N A

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MARK  GORDON  KIM  WEBB

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Mr C W D Aylett QC appeared on behalf of the Attorney General
Miss R Collins appeared on behalf of the Offender
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Judgment

Wednesday  18  June  2008

THE LORD CHIEF JUSTICE:
Introduction 
1.  On 14 January 2008, in the Crown Court at Bristol, before His Honour Judge Lambert, the offender Mark Webb was convicted of two offences of sexual activity with a child contrary to section 9 of the Sexual Offences Act 2003.  On 19 March 2008 he was sentenced to eighteen months' imprisonment, concurrent on each count.  
 
2.  The Attorney General applied for leave to refer this sentence to this court for review, pursuant to section 36 of the Criminal Justice Act 1988, on the ground that it is unduly lenient.  We granted leave at the beginning of the hearing.  
 
Background 
3.  The offender was born on 19 June 1974.  He was aged 32 at the time of the offences.  His victim K was aged 15 years and three months.  
 
4.  In May 2007 K had known the offender for about six months as the boyfriend of one of her friends (who was aged 17).  She had regularly visited the offender's flat with her own boyfriend M.  She would drink vodka heavily when she was there, which the offender would purchase for her with her money.  
 
5.  On 30 May 2007 K went to the offender's flat in a distressed state as M had been held in police custody.  The offender agreed to telephone the police posing as M's father to find out when he would be released.  He was told that it would not be for a few hours.  The offender went out with K and bought her a small bottle of vodka.  They returned to the flat where the offender gave her several glasses of the vodka.  
 
6.  K began to feel the influence of the drink and lay down on the sofa.  The offender comforted her and then took her into his bedroom.  He began to kiss her and he removed her jeans and underwear.  He performed oral sex upon her.  He stopped when she protested, but then got on top of her and penetrated her vagina with his finger.  She again asked him to stop, whereupon he removed his finger and placed his penis in her vagina.  She repeated that she did want this and asked him to stop.  He withdrew his penis.  She went to the lavatory and got dressed.  When she came out the offender here another vodka and a cigarette.  He warned her that if she told anyone she would be a "dead girl".  
 
7.  K went home and told her mother, who called the police.  K provided a video‑recorded interview in which she said that the offender had also taken photographs of her using her mobile telephone, which he had posted on the internet.  Although this was pursued at trial, there was no evidence to support that allegation.  
 
8.  At the trial the offender did not give evidence.  Evidence was given by a friend of K's, L, who was also aged 15 and had been the subject of suggestive comments from the offender who had asked her if she would be bothered by the idea of a 38 year old man going out with a girl of 16.  
 
The Sentencing Material 
9.  At the sentencing hearing the judge had a pre‑sentence report which found the offender to be stressed and emotionally unstable.  He was still in complete denial of the offence.  He had previous convictions for deception, forgery and theft dating back to 2000, but no convictions for an offence of a sexual nature.  He had not completed his education as a result of the abuse he had suffered from his adoptive father and had been sectioned under the Mental Health Act at the age of 17.  He spent four years in hospital.  Thereafter he was assessed as incapable of work and lived on Disability Living Allowance.  He had five children but had little contact with any of them.  He had absconded on bail with a vulnerable 18 year old after his arrest.  He was assessed as posing a high risk of sexual harm to female children of teenage years.  His victim had been vulnerable and his actions predatory.  It would not be until he acknowledged his guilt and could more readily accept his sentence deviancy that any meaningful treatment could be commenced.  
 
10.  There was also a psychological report from Dr David Torpy which found the offender to be a person with limited mental ability functioning in the dull‑normal level.  He asked that the court should treat him as a normal person.  He appeared to have a chronic alcohol problem.  
 
11.  K provided a victim impact statement in which she blamed herself for becoming drunk.  She stated that she had become almost housebound since the incident and put under severe stress by the proceedings.  The trial had been traumatic; hearing her video interview again had revived the memories.  She had made a suicide attempt shortly afterwards.  
 
The Sentencing Hearing 
12.  At the sentencing hearing on 19 March 2008 Miss Collins, who represented the offender as she has done before us, concentrated largely on personal mitigation.  She submitted that the offender was immature, vulnerable and intellectually impaired.  She also said this in relation to his physical well‑being at the time:  
 
		"He actually appears in the last few weeks whilst he has ben in custody to have thrived in an environment where there is a structure, there is a boundary, there is supervision.  He almost seems quite content in custody.  When he was on bail he had extraordinary problems so far as accommodation is concerned.  He was often sleeping rough.  He often saw those instructing me and myself having spent the night without any sleep at all.  He was sleeping in the bus station, and the like.  He was depending on people like himself to try and put him up.  
 
		He looks so much better.  He obviously gets a good night's sleep.  he is on medication which suits him.  He has been on medication for many years.  The medication he is on at the moment appears to suit him.  He does not have the dark circles around his eyes that he had during the course of the trial.  He was not eating, he spent days not eating during the course of the trial."  

There was reference between counsel and the judge to the Sentencing Guidelines Council's guideline for this offence.  This recommends as a starting point for circumstances such as those before the judge a sentence of four years' custody and a sentencing range of between three and seven years.  The judge remarked on the "huge departure" from the sentence that would have been appropriate for the offence of unlawful sexual intercourse and observed that the best that could be said for the offender was that K was in the upper reaches of the protected age range.  
 
13.  In sentencing the offender the judge started by imposing a sexual offences prevention order in the following terms:  
 
		"Mark Webb is not to: 1, have any contact direct or indirect with any person under the age of 16 whom he does not reasonably believe to be over that age for longer than five minutes on any one occasion; 2, reside in a dwelling where any person under the age of 16 also resides; 3, cause or permit any person under the age of 16 whom he does not reasonably believe to be over that age to enter or remain in the dwelling or curtilage thereof where he resides".  Curtilage means garden and yard and similar directly adjacent to houses.  "4, enter any school or school premises as defined by section 139(a)(vi) of the Criminal Justice Act 1988 or loiter within 50 metres of such premises as defined; 5, enter any children's playground or play area or loiter within 50 metres of any such premises".  I recite further, although it is not part of this order:  you will be disqualified from working with children for life.  The sexual offences prevention order is until further order."  

The judge went on to say this:  

		"You took advantage of a 15 year old girl when she was in drink.  Whether she was accustomed to drink, she was affected by it.  You then perpetrated two sexual acts upon her.  She was a vulnerable girl who had suffered significantly at the hands of others in the past.  I have regard to the Sentencing Council's Guidelines in relation to such offences.  The starting point there reflected does not reflect the right sentence for a consensual act with a 15 year old girl, wicked though what you did was.  
 
		Come what may, your offending is so serious that fines and community sentences cannot be justified.  Taking into account the gross intellectual impairment that I note in you, the fact that you are much younger than your chronological age in terms of your psychology and general attitude towards things, and taking into account certain delusions you have revealed to the writer of the pre‑sentence report, a considerably shorter sentence is appropriate in your case that might be suggested by those guidelines, which are just that and no more.  
 
		Having regard to the fact of the impact that imprisonment is going to be greater upon you then almost any other man who has to be dealt with for such offences, the right sentence in your case is one of 18 months' imprisonment concurrent on each count."  

14.  For the Attorney General Mr Aylett QC submits that the reasons given by the judge for departing from the Sentencing Guidelines Council's guidance are demonstrably unsound.  As to the offender's intellectual condition, he submits that there is nothing about this that differs from what is all too often the picture in cases such as this.  
 
15.  Mr Aylett referred us to a psychological report dated 23 November 2007 written by Dr David Torpy, a clinical and forensic consultant psychologist.  This shows that the offender had a disruptive childhood.  He was adopted at the age of 9 and thereafter taken into care on a number of occasions.  The following quotation is taken from that section of the report that deals with his intelligence:  
 
		".... he was assessed for his intellectual abilities and found to be functioning in his low 80s.  The normal average range of IQ is set between 85‑115 with a mean of 100.  He fell just below this at a level sometimes referred to as dull‑normal.  The spread of his different abilities was uniformed which indicates no specific intellectual damage or insult.  it would be reasonable to conclude from those figures that this is how he always was, albeit that the constant movement of domicile would have adversely affected his schooling."  

We do not consider that this report provides justification for the judge's radical departure from the guidance given by the Sentencing Guidelines Council.  Miss Collins submitted, however, that the judge's appraisal was based not just on this, but on his own observations of the offender during the six day trial.  He was manifestly immature and inadequate, almost living in fantasy land.  He drew pictures during the hearing.  
 
16.  Mr Aylett contrasted the remarks that the judge had made about the impact of prison upon the offender with the picture painted by Miss Collins of a man who had flourished under the prison regime.  We consider that there is force in Mr Aylett's comment that the judge's remarks do not seem to be justified.  
 
17.  Mr Aylett submitted that this case had the following aggravating features: the disparity in ages between the offender and K; the fact that K's consent was opportunistic, influenced by alcohol; the fact that there was both digital and penile penetration, and the fact that the offender sought to persuade K from speaking of what had happened by threats.  
 
18.  The Sentencing Guidelines Council draws attention in large bold letters to the fact that the offence in question is a "serious offence" for the purposes of section 224 of the Criminal Justice Act 2003.  This section and section 225 requires the judge to consider whether there was a significant risk to members of the public of serious harm occasioned by commission by the offender of further specified sexual offences.  An affirmative response to that question requires the judge to impose either a life sentence or a sentence of imprisonment for an indeterminate period, together with a minimum term to be served as the appropriate custodial period to reflect punishment, retribution and deterrence.  Section 229(2) specifies the matters to which the court must or may have regard when carrying out this exercise.  
 
19.  The judge did not expressly refer to these provisions.  Miss Collins submits that it was implicit in his approach that he had decided that the case did not fall within them.  Nonetheless, we think that this court ought to consider them for itself.  
 
20.  We turn to the nature and circumstances of the offence.  The judge described it as a consensual act.  That description gives an over‑generous appearance to what in fact occurred.  Three times K asked the offender to desist from the particular sexual activity on which he was engaged, and three times he complied.  It must have been made plain to him that K was a far from enthusiastic participant in what he was doing.  This is underlined by the fact that he warned her, with threats, not to tell anyone what he had done to her.  The evidence of L adds to our concern that the offender's behaviour evidences a particular attraction towards young girls.  
 
21.  Dr Torpy was unable to carry out a full psychiatric assessment.  Carrie Young, the probation officer who prepared the pre‑sentence report, made the following assessment of the offender's risk of re‑offending and of causing serious harm:  
 
		"15.  Mr Webb is assessed as posing a high risk of sexual harm to female children of teenage age.  The victim of his offending was very vulnerable not just because of her age but for the other social and emotional problems.  It appears that Mr Webb manipulated a situation to allow him to offend and his actions were indeed predatory.  His denial and complete lack of responsibility and victim empathy indicates that he is not at a stage where he is willing to accept a sexual attraction to children, despite clear evidence and in my view this is a significant factor in assessing the risk of harm posed.  
 
		16.  Actuarial tools indicate Mr Webb represents a medium risk of sexual reconviction but my clinical view is that if his current attitudes remain unchallenged and he returns to living a lifestyle similar to that preceding the offence the risk of re-offending in this way will be higher.  It is not until he acknowledges guilt and can more readily accept his sexual deviancy that any meaningful work, such as attendance on an appropriate sex offender treatment programme, can be carried out."  

22.  We have borne in mind the guidance given in R v Lang [2005] EWCA Crim 2864 in respect of cases such as this one.  If we are to impose an indeterminate sentence in accordance with section 225 we must be satisfied that there is a significant risk of serious harm.  "Significant" means more than possible.  It means "noteworthy, of considerable amount or importance":  see paragraph 17 of the judgment.  Serious ham is defined by section 224(3) to mean "death or serious personal injury, whether physical or psychological".  
 
23.  We bear in mind that this was a first offence of a man who has reached the age of 32 and who, on the evidence, spent time in the company of adolescent girls without any previous incident of this nature.  We also bear in mind the terms of the Sexual Prevention Order imposed on him.  We are thus concerned with the degree of risk that he will flout that order and commit further specified offences that cause serious harm.  It is impossible to say that there is no such risk, but we do not consider in all the circumstances that the risk can be categorised as significant.  
 
24.  Accordingly we have concluded that it was appropriate to impose a determinate sentence.  We have concluded that, for the reasons advanced by Mr Aylett, the sentence imposed was unduly lenient.  There were serious aggravating feature which, in the absence of mitigation, would have taken this offence above the recommended starting point of four years.  As against these, however, there is the fact that K was 15 years of age, at the upper end of the protected age range, and the offender's immaturity, which weighed so heavily with the judge.  We consider that the aggravating and mitigating features are broadly in balance and that it is right to pay some regard to the stress that is involved when a sentence is re‑opened on an Attorney General's reference.  Accordingly, we will quash the sentence of 18 months' imprisonment and replace it with a sentence of three years and six months' imprisonment.  
 
MR AYLETT:  I think the effect of that would be that the notification period would be for an indefinite period rather than the existing period of ten years.  
 
THE LORD CHIEF JUSTICE:  Yes, that must follow.