Jason Allington [2019] EWCA Crim 1430
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R v Jason Hugh Allington [2019] EWCA Crim 1430 was an appeal against sentence heard by the Court of Appeal Criminal Division, which allowed the appeal and reduced the custodial term.
Mr Allington pleaded guilty at the magistrates’ court to one offence of arranging or facilitating the commission of a child sex offence, contrary to section 14 of the Sexual Offences Act 2003. His case was committed for sentence under section 3 of the Powers of Criminal Courts (Sentencing) Act 2000. On 1 November 2018 at Aylesbury Crown Court he was sentenced to an extended sentence under section 226A of the Criminal Justice Act 2003, comprising a custodial term of four years and an extension period of three years. A sexual harm prevention order for ten years was imposed, along with a victim surcharge, and Mr Allington was made subject to notification requirements indefinitely. He appealed with leave of the single judge.
In March 2018 the Organised Crime Unit Southeast Region created a profile in the name of “Ellie”, purporting to be aged 13, on a website for dating teenagers called “MyLOL”. Mr Allington, aged 40, accessed the profile. His own profile falsely stated he was 17 and from Birmingham, and he told “Ellie” he was 18. Within minutes of beginning to converse he asked whether she used another messaging service, KIK, an encrypted instant messaging application. They began messaging and very quickly he was asking what she had done sexually before. He told her he had digital sex with other girls and said that after they met she would no longer be a virgin. He told her the size of his penis when erect and asked for her body measurements. Over the following days there was talk about meeting up. He told her twice to delete their messaging and not to tell anyone, and that if they had sex she could not tell anyone until she was 16. He asked for pictures but no sexual images were exchanged. He took pictures of the bed in the cab of the lorry they were to meet in. He suggested various dates to meet, and a fixed arrangement was made for 10 April 2018. Mr Allington said he was working, driving down the M1, and could meet her in Milton Keynes in his lorry. He asked whether she was on her period because he did not want to have sex with her during menstruation. When “Ellie” expressed worry about pregnancy there was talk of condoms. He said he would withdraw before ejaculation but agreed to buy condoms on the way to meeting her. There was discussion about what she should wear. He told her he was falling in love with her and that she was his “special girlfriend”. Mr Allington arrived in his HGV at the agreed time and place on a main road in Milton Keynes. He had condoms in the cab. Police officers were waiting and arrested him. His phone was seized. No indecent images of children were found on it. In interview he gave a no comment response.
The sentencing judge made reference to the Sentencing Council guidelines. The guidelines for offences contrary to section 14 direct sentencers to refer to the guideline for the applicable substantive offence of arranging or facilitating under sections 9 to 12. The judge correctly referred to the guideline for sexual activity with a child, an offence contrary to section 9 of the Sexual Offences Act 2003. He took the view that this was a category 1 harm offence, given that what was being arranged was clearly penetration of the vagina with a penis. Regrettably the sentencing judge was not made aware of the authority of R v Baker [2014] EWCA Crim 2752. Mr Allington had previous convictions, but none triggered the dangerousness assumption within the Criminal Justice Act 2003.
On appeal Mr Flemming appeared on behalf of Mr Allington. The Court of Appeal held that the sentencing judge had erred. In Baker it was made clear that the question to be considered was whether making an arrangement to behave in a particular way, which did not involve anything more, fell within the same category of harm as actually committing the act itself. The court stated that in the circumstances of this case it did not. The level of harm disclosed fell, in the court’s judgment, at category 3 within the guidelines, namely as “other sexual activity”. It should be remembered that in this case there was no victim of the offender’s abusive behaviour, “Ellie” being a fictitious online profile created by the authorities with a view to ensnaring those who wished to sexually abuse children. Harm caused by the penile penetration of “Ellie” could never have taken place in the circumstances even though this was very much in contemplation of Mr Allington. This was not to say that this offending was not so serious as to merit anything other than an immediate custodial sentence, just that the appropriate starting point within the guidelines was 26 weeks’ imprisonment, up to a limit of three years’ imprisonment within the sentencing range. Unless the sentence to be imposed was of at least four years’ duration, Mr Allington could not be sentenced within the dangerousness provisions. Given the court’s approach to the application of the Sentencing Guidelines, the custodial sentence imposed was wrong in this case. Mr Allington should be sentenced outside the dangerousness provisions and should instead receive an immediate determinate custodial sentence.
The court found this to be a category 3A offence. There was culpability at level A because of the planning involved, including sending pictures of the bed in which intercourse was to occur and the purchase of condoms. Mr Allington also lied about his age. Additional aggravating features were found in Mr Allington taking steps to prevent “Ellie” reporting his behaviour towards her, the time period over which the offending took place, and his willingness to travel to an agreed destination where he believed he would be able to sexually abuse a child. These aggravating features significantly increased the starting point towards near to the top of the range of sentences available, particularly given what Mr Allington contemplated would occur. The pre-sentence report described Mr Allington as at medium risk of reoffending but posing a high risk of causing serious harm to young teenage females. There was mitigation available in his lack of relevant previous convictions and in matters raised in the pre-sentence report. The court also took note of the contents of the grounds of appeal repeated and added to in oral submissions from Mr Flemming. The court had also considered the recent report of Mrs Norton, a psychologist, dated 7 July 2019.
Balancing the aggravating and mitigating features of the case, Mr Allington could have expected to receive a sentence after conviction at trial of 30 months. Applying credit for plea, this sentence was reduced to one of 20 months. To that extent the appeal was allowed. The victim surcharge order remained in place. The sexual harm prevention order also remained in place for ten years but the notification period for the sex offender register was reduced to a similar period of ten years given the sentence imposed. In short, the extended sentence was quashed and replaced with a determinate sentence of 20 months’ imprisonment, the court having held that the sentencing judge had wrongly applied category 1 harm rather than category 3 harm under the guideline.