Charlie Johnson [2019] EWCA Crim 1537

**R v Charlie Albert John Johnson** [2019] EWCA Crim 1537 concerned an appeal against sentence by the Court of Appeal (Lord Justice Gross and Mr Justice Stuart-Smith) which was allowed in part and the custodial term reduced.

Mr Johnson pleaded guilty on 24 May 2019 at Oxford Crown Court to one count of causing or inciting a child to engage in sexual activity, contrary to section 10(1) of the Sexual Offences Act 2003. On 11 July 2019 His Honour Judge Pringle QC sentenced him to sixteen months’ detention in a Young Offender Institution. He appealed with the permission of the single judge.

The complainant, ER, was a fourteen-year-old girl who became friendly with the appellant around April or May 2019. At the outset the appellant was seventeen, having been born on 10 April 2001; he turned eighteen on 10 April 2019. During their association the appellant bought ER gifts including perfume and make-up. Her separated parents were aware of the relationship and tried to discourage it, informing her school, which was itself aware that the appellant had been hanging around with younger girls. On 8 May 2019 ER went missing and was found with the appellant in a park in Abingdon the following day. Their mobile telephones were seized and the appellant was arrested. Analysis of the phones revealed a string of clear and explicit messages in which the appellant incited ER to have full penetrative sexual intercourse with him. These messages, sent on 2 May 2019 about four weeks after the appellant’s eighteenth birthday, formed the basis of the count.

Before the sentencing judge it was common ground that by reference to the sexual offences sentencing guideline the offence fell within category 1. The Crown contended it was category 1A because the giving of gifts amounted to grooming, while the defence argued it was category 1B on the basis that the gifts were merely incidents of a developing association and did not constitute grooming in the sense meant by the guideline.

The appellant was the troubled product of an intensely dysfunctional upbringing. In addition to a detailed short-form pre-sentence report the judge had a risk assessment summary and formulation from the South Central Community Forensic Child and Adolescent Mental Health Service prepared in March 2019. Both reports spoke with one voice in evidencing a lack of parental attention and sustained neglect which had severely affected the appellant’s social, cognitive and psychological needs and development. The result was a maturity level more akin to that of a fifteen-year-old, an inability to form appropriate relationships and a worrying tendency to form associations with younger persons. A subsequent CAMHS report suggested the possibility of ADHD or some form of conduct disorder, though there had been no formal investigation or diagnosis. The exclusion of the appellant from his severely disabled brother’s funeral in 2017 had been particularly detrimental and coincided with an upsurge in violent and uncontrolled behaviour. By the time of sentencing the appellant had accumulated twenty-six offences between 2016 and 2018, most involving aggression or violence, but had no previous convictions for sexual offences. Notwithstanding that he had made some tentative and limited progress under supervision, the pre-sentence report assessed him as posing a very high risk of reconviction for sexual crime, a high risk of serious harm to children and a medium risk of serious physical harm to members of the public. The report recognised the prospect of a custodial sentence but proposed as an alternative a community order of thirty-six months with one hundred and fifty hours unpaid work and a rehabilitation activity requirement of forty days.

The judge concluded that the offence fell more appropriately into category 1B, a conclusion with which the Court of Appeal respectfully agreed. The guideline starting point was therefore twelve months’ imprisonment after trial, with a range from a high-level community order to two years’ custody. The judge stated he would have passed a sentence of two years after trial which, after a full one-third reduction for plea, resulted in the sentence of sixteen months’ detention in a Young Offender Institution.

On appeal Mr Du Feu advanced four grounds which were distilled into two main arguments. The grounds were that the judge took too high a starting point; did not have sufficient regard to the appellant’s age; did not have sufficient regard to personal mitigation relating to his background and psychological issues; and that an appropriate alternative to custody was available which should have been pursued.

The Court of Appeal suspected that the judge’s decision to settle on two years before discount for plea was influenced by the submission that this was a category 1A case because of the possible element of grooming. The court noted that it was an unusual feature of the guideline that there was a void between the category ranges for category 1A (four to ten years) and category 1B (community order to two years). Once the judge had settled on category 1B it was not clear from the sentencing remarks what features were relied upon to justify a one hundred per cent increase from the starting point of one year unless it was simply recognition of the worrying features of the case.

The court considered the appellant’s second submission, concerning his age, to have some force. He was eighteen at the time of the offence but only just, and the evidence before the court, backed by the reasoned explanation of a highly dysfunctional upbringing, was that he had the maturity akin to that of a fifteen-year-old. The court accepted that this consideration could reasonably exert downwards pressure on the sentence to be imposed. For the same reason the court considered there was some force in the third argument relating to personal mitigation, though it was closely intertwined with the second argument and added little to it.

Turning to the fourth argument, the judge below did not refer to the guideline on the imposition of community and custodial sentences and the court did not know whether or to what extent he had considered it. By reference to the factors listed in that guideline, the court noted that the appellant presented a significant risk of danger to the public and in particular to young girls; he had a poor history of compliance with court orders and offending during periods of supervision, although there were some grounds for hope of improvement; the prospects of rehabilitation were not good because of the complexity of the appellant’s upbringing and consequential difficulties; the personal mitigation was of moderate strength but far from overwhelming. In the court’s judgment the offence was of sufficient seriousness that the very experienced judge was entitled to conclude that appropriate punishment could only be achieved by immediate custody. It would not be appropriate to substitute a community penalty or a suspended sentence instead of an immediate custodial sentence.

However, the court did consider that there was scope to reduce the length of sentence by reference to the first, second and third arguments advanced on appeal. In the court’s judgment the worrying features of the case justified an uplift from a starting point of twelve months. The appellant’s arguments cumulatively led to the conclusion that an appropriate sentence before discount for plea would have been one of eighteen months, to which the judge’s full discount should be applied. The court therefore quashed the sentence imposed and substituted a sentence of twelve months’ detention. In short, the appeal was allowed in part and the sentence reduced from sixteen months to twelve months’ detention.