David Jenkins [2019] EWCA Crim 1576

In David Jenkins [2019] EWCA Crim 1576 the Court of Appeal (Lord Justice Singh, Mr Justice Fraser and Mr Justice Martin Spencer) dismissed an appeal against a four‑year sentence of imprisonment for sexual offences involving online grooming and incitement of a child.

On 22 March 2019 Mr Jenkins pleaded guilty at Oxford Crown Court to causing or inciting a child to engage in sexual activity with penetration (section 10(1) of the Sexual Offences Act 2003), causing or inciting a child to engage in sexual activity without penetration, and making indecent photographs of a child (section 1(1)(a) of the Protection of Children Act 1978). He was sentenced to four years’ imprisonment for the first count, with two years and one year concurrent respectively for the second and third counts. A Sexual Harm Prevention Order was imposed under section 103A of the 2003 Act.

The victim, ER, was born in 2000. In April or May 2016, when she was 15, she searched Twitter for the term “DDLG” (standing for “Daddy Dom Little Girl”) and Mr Jenkins responded by private message. An online relationship developed. ER made it clear she was 15. Mr Jenkins told her he was in his forties; his date of birth was 9 July 1960, making him 55 at the time. Over the summer of 2016 Mr Jenkins presented himself initially as a protective figure, warning ER of “perverts” on social media who would exploit her. He advised her to be cautious, posting that Doms could promise the earth, take a picture and disappear. When ER thanked him for being “nice and genuine” he replied that he would hate for someone like her to be hurt as others had been. The judge observed that, having gained ER’s trust, Mr Jenkins drew her in in classic grooming style until she began engaging in sexual activity, some of which was photographed and provided to him. Some activities were extreme and involved the administration of pain. The judge found that Mr Jenkins normalised wholly abnormal behaviour in a child, instigating it, controlling it and placing ER in a position where she thought it was the right thing to do, always for his sexual gratification. This culminated in a video made by ER in September 2016, five days before her sixteenth birthday, in which she filmed herself masturbating at Mr Jenkins’s request, penetrating herself. This formed the basis of the first and third offences. The second offence covered a range of activity including photographs and messages, including an image of ER’s breast with clothes pegs attached and conversations about her touching herself. Although communications continued after 9 September 2016, ER was by then no longer a child.

ER’s parents noticed a change in her behaviour over the summer of 2016. Matters came to a head in November 2016 when her father found sex toys and shiny black shoes in her bedroom and discovered that money had been transferred into her bank account by Mr Jenkins on three occasions, all after her sixteenth birthday. Mr Jenkins was traced, arrested and answered no comment in interview. He was aged 58 at sentence and of previous good character. He had served with distinction in the British Army for 22 years, achieving the rank of Warrant Officer Class One, the highest non‑commissioned rank. He had been awarded the Long Service and Good Conduct Medal in June 1999 and had served in the Chief of the General Staff’s Directorate of Military Operations and the Directorate of Army Legal Services. His conduct was described as exemplary by his Commanding Officer. Mr Jenkins was married with three children. In February 2009 his wife suffered a stroke, spending 21 days in hospital and left with right‑sided weakness, a subluxated shoulder, a clawed right hand and a dropped foot. She became wheelchair‑bound and Mr Jenkins became her primary carer, attending to her dietary needs, personal hygiene, shopping and cleaning and caring for the children. His wife described their relationship before his arrest as having been stuck in a rut, with limited meaningful communication, though ironically it improved dramatically following his arrest.

The pre‑sentence report recorded that Mr Jenkins had accepted responsibility and expressed remorse but denied that his offending was sexually motivated and denied any sexual interest in children. He failed to recognise ER as a victim and had limited insight. He was assessed as at low risk of general re‑offending, medium risk of serious recidivism and medium risk of serious harm to children and to himself from suicide or self‑harm. In a victim personal statement described by the judge as harrowing, ER stated that Mr Jenkins had made her life a nightmare. She resorted to self‑harming, developed an eating disorder, anxiety and distrust of people. The events interfered with her education and she was scared to go out. She had sleep problems and had become distant from her family, describing herself as having gone from being a happy, carefree, chatty girl to a closed‑off depressed one. She felt she had lost her family because of what Mr Jenkins had done.

The judge considered that count one fell within Category 1A of the definitive sentencing guideline, carrying a range of four to ten years’ custody. He took a starting point after trial of six years, reduced to four years with full credit for the guilty plea, with concurrent sentences for the other counts. The judge doubted whether Mr Jenkins took full responsibility, noting that he apologised to the court, police and families but not specifically to ER.

On appeal Miss French submitted first that the six‑year starting point was too high and secondly that insufficient account was taken of the appellant’s personal mitigation. On the first ground she contended that there was no clear evidence of grooming, given that ER had initiated contact by asking whether Mr Jenkins had a “sub” and stated she had been a “little” for some months, such that the term grooming (denoting the erosion of social barriers through gaining trust and normalising the abnormal) could not be applied. The court rejected this submission. It referred to Porter [2017] EWCA Crim 1454 for the proposition that grooming is not a term of art and may cover a wide range of behaviour. The court held that the judge had been right to describe Mr Jenkins as drawing ER in in classic grooming style until she engaged in sexual activity, with an escalation culminating in the video of 2016. Miss French conceded that even if the court disagreed on grooming, the case fell squarely within Category 1A because of the sexual images solicited and the age discrepancy. The court held that although the starting point for Category 1A is five years, the judge was entitled in all the circumstances to reach a starting point of six years within the sentencing range, taking account of what he saw and heard including ER’s victim personal statement.

On the second ground the court noted that personal mitigation carries little weight in such cases, as the guidelines make clear. It acknowledged that the impact of the sentence would be disproportionately large on Mr Jenkins’s family given his wife’s disability, but observed that this was a risk he ran with his eyes open when he engaged in the conduct over the summer of 2016. An immediate custodial sentence was always inevitable and the only question was its length. Whilst the court acknowledged that the sentence was perhaps towards the severe end of the available range, it could not be described as manifestly excessive. In short, the appeal was dismissed.

Porter [2017] EWCA Crim 1454