Midana Bigna [2019] EWCA Crim 1669
Summary
**R v Midana Bigna [2019] EWCA Crim 1669** concerned an appeal against sentence by a 32-year-old man who pleaded guilty at Norwich Crown Court on 6 March 2019 to making an indecent photograph of a child (Protection of Children Act 1978, section 1(1)(a)) and two offences of sexual activity with a child (Sexual Offences Act 2003, section 9(1)). On 29 April 2019 Her Honour Judge Bacon QC imposed concurrent sentences of six years on count 3 and eight years on counts 5 and 6, for a total term of eight years’ imprisonment. A Sexual Harm Prevention Order was made and the appellant’s mobile phone was forfeited. Counts of rape were ordered to lie on file in the usual terms. A further count of meeting a child following sexual grooming was not pursued and a not guilty verdict was entered.
Mr Bigna was of previous good character. In early January 2019 he made contact with the complainant, TW, a 15-year-old girl, via Facebook. She told him her true age but he lied and claimed to be 23. Over two weeks the communications became intimate. He sent her a photograph of his naked body and arranged to meet her on 16 January. He offered to buy her lingerie but she declined.
On the day of the meeting TW arrived at a supermarket car park with a friend of the same age, M. As soon as both girls entered his car he gave TW vodka. He drove them to his flat some distance away and they spent the afternoon listening to music. During that time he and TW exchanged text messages describing what the prosecution later characterised as “seduction by text”, in which he indicated his wish to engage in sexual activity with her. It was clear that nothing would take place while M was present.
After dropping the girls back and M left, TW, who was already tipsy, met the appellant again at about 6.30pm. Over the next 90 minutes or so he continued to supply her with alcohol until she was heavily intoxicated. He then had vaginal and oral sexual intercourse with her on the back seat of his car without a condom. He recorded the activity on his mobile phone without her knowledge. During the vaginal penetration he asked her how old she was, plainly not for information but for his sexual gratification. The activity ended when TW was violently sick. She left him and returned home without her underwear, crying uncontrollably and in abdominal pain, unable to remember the detail of what had happened.
The appellant was arrested the following day. The footage showing TW’s face and the sexual activity in the car was recovered from his phone. He gave a pack of lies to the police, claiming that TW had told him she was 19 or 20, that he had not planned sex, and that she instigated the filming. Toxicological analysis confirmed that TW would have been heavily drunk at the time of the sexual activity. He was charged with two counts of rape, grooming and making indecent images. Counts 5 and 6 (sexual activity with a child) were added shortly before the Crown Court appearance.
In the complainant’s Achieving Best Evidence interview and Victim Personal Statement she described feeling deep shame, that she had been used as a toy, and distress that others would see the footage. After reporting to police she had to wait 24 hours before she could shower, required medication for a sexually transmitted disease contracted from the appellant, and was tested for HIV. She suffered nightmares, social ostracisation among her peers, panic attacks, and did not like to be left alone. Four months after the offence she remained scared to walk to the supermarket even in company and reported loss of self-esteem and confidence.
In interview with a probation officer the appellant minimised his offending. He claimed he impulsively engaged in sexual activity and equally spontaneously decided to film it. He could not account for lying about his age to the girl he knew to be 15. He continued to deny that the recording was for his own sexual gratification and displayed little insight into the inherent power imbalance he had exploited or genuine remorse.
The appellant did not enter pleas at the plea and trial preparation hearing on 18 February but was told that credit available that day would not be lost. He pleaded guilty on 6 March 2019, maintaining that he only discovered TW’s age during sexual activity. The initial messages proved this untrue. The prosecution agreed, and the judge affirmed, that full credit for a guilty plea would be given.
On behalf of Mr Bigna it was submitted that eight years’ imprisonment after full credit implied a notional sentence after trial of twelve years, which was outside the category range and close to the statutory maximum of fourteen years for the section 9 offences. A subsidiary point was that the six-year sentence on count 3 placed a single offence of making an indecent photograph at the top of the category range, betraying unjustified harshness.
The judge had principally considered the Sentencing Council guideline for sexual activity with a child. She identified a number of elements placing the offending into the highest category, 1A, namely the degree of planning, the use of alcohol to facilitate offending, grooming, the recording and retention of sexual images during the activity, lying about his age, and the significant disparity in ages. These were six of the fourteen high culpability factors set out in the guideline. The starting point for a single offence was five years’ custody within a category range of four to ten years. The judge also found that the separate guidance for making an indecent image placed the case in the highest category with a starting point of six years within a range of four to nine years. She said that the preponderance of features served to “augment” the sentence. However, the judge did not explain why a provisional sentence outside the offence range was justified.
The Court of Appeal, comprising Lord Justice Simon, Mrs Justice Cheema-Grubb and Her Honour Judge Dhir QC, held that whilst section 125(1) of the Coroners and Justice Act 2009 mandates that every judge have regard to a relevant guideline, departure is permissible where justice demands and there must be a good reason which should be articulated. The guideline provides that a case of particular gravity, reflected by multiple features of culpability or harm, can merit upward adjustment from the starting point, potentially beyond the category range. But such a departure must be capable of rational explanation.
The Court accepted that the proliferation of serious features required a firm sentence but was persuaded that the judge had passed a manifestly excessive sentence. A sentence within the category range was required. A term of six years’ imprisonment for all the offending was appropriate, reached from a provisional nine-year term before full credit for the guilty plea was applied. Nine years represented an uplift from the guideline starting point of five years to reflect the multiplicity of high culpability factors but remained within the category range. A proportionate reduction was made to the sentence on count 3.
Accordingly, the appeal succeeded to the extent that the sentences on counts 5 and 6 were reduced from eight years to six years and the sentence on count 3 was reduced from six years to four years. All terms continued to run concurrently. In short, a total sentence of six years’ imprisonment replaced the original eight years where the judge had departed from the category range without adequate justification for doing so.
Mr Bigna was of previous good character. In early January 2019 he made contact with the complainant, TW, a 15-year-old girl, via Facebook. She told him her true age but he lied and claimed to be 23. Over two weeks the communications became intimate. He sent her a photograph of his naked body and arranged to meet her on 16 January. He offered to buy her lingerie but she declined.
On the day of the meeting TW arrived at a supermarket car park with a friend of the same age, M. As soon as both girls entered his car he gave TW vodka. He drove them to his flat some distance away and they spent the afternoon listening to music. During that time he and TW exchanged text messages describing what the prosecution later characterised as “seduction by text”, in which he indicated his wish to engage in sexual activity with her. It was clear that nothing would take place while M was present.
After dropping the girls back and M left, TW, who was already tipsy, met the appellant again at about 6.30pm. Over the next 90 minutes or so he continued to supply her with alcohol until she was heavily intoxicated. He then had vaginal and oral sexual intercourse with her on the back seat of his car without a condom. He recorded the activity on his mobile phone without her knowledge. During the vaginal penetration he asked her how old she was, plainly not for information but for his sexual gratification. The activity ended when TW was violently sick. She left him and returned home without her underwear, crying uncontrollably and in abdominal pain, unable to remember the detail of what had happened.
The appellant was arrested the following day. The footage showing TW’s face and the sexual activity in the car was recovered from his phone. He gave a pack of lies to the police, claiming that TW had told him she was 19 or 20, that he had not planned sex, and that she instigated the filming. Toxicological analysis confirmed that TW would have been heavily drunk at the time of the sexual activity. He was charged with two counts of rape, grooming and making indecent images. Counts 5 and 6 (sexual activity with a child) were added shortly before the Crown Court appearance.
In the complainant’s Achieving Best Evidence interview and Victim Personal Statement she described feeling deep shame, that she had been used as a toy, and distress that others would see the footage. After reporting to police she had to wait 24 hours before she could shower, required medication for a sexually transmitted disease contracted from the appellant, and was tested for HIV. She suffered nightmares, social ostracisation among her peers, panic attacks, and did not like to be left alone. Four months after the offence she remained scared to walk to the supermarket even in company and reported loss of self-esteem and confidence.
In interview with a probation officer the appellant minimised his offending. He claimed he impulsively engaged in sexual activity and equally spontaneously decided to film it. He could not account for lying about his age to the girl he knew to be 15. He continued to deny that the recording was for his own sexual gratification and displayed little insight into the inherent power imbalance he had exploited or genuine remorse.
The appellant did not enter pleas at the plea and trial preparation hearing on 18 February but was told that credit available that day would not be lost. He pleaded guilty on 6 March 2019, maintaining that he only discovered TW’s age during sexual activity. The initial messages proved this untrue. The prosecution agreed, and the judge affirmed, that full credit for a guilty plea would be given.
On behalf of Mr Bigna it was submitted that eight years’ imprisonment after full credit implied a notional sentence after trial of twelve years, which was outside the category range and close to the statutory maximum of fourteen years for the section 9 offences. A subsidiary point was that the six-year sentence on count 3 placed a single offence of making an indecent photograph at the top of the category range, betraying unjustified harshness.
The judge had principally considered the Sentencing Council guideline for sexual activity with a child. She identified a number of elements placing the offending into the highest category, 1A, namely the degree of planning, the use of alcohol to facilitate offending, grooming, the recording and retention of sexual images during the activity, lying about his age, and the significant disparity in ages. These were six of the fourteen high culpability factors set out in the guideline. The starting point for a single offence was five years’ custody within a category range of four to ten years. The judge also found that the separate guidance for making an indecent image placed the case in the highest category with a starting point of six years within a range of four to nine years. She said that the preponderance of features served to “augment” the sentence. However, the judge did not explain why a provisional sentence outside the offence range was justified.
The Court of Appeal, comprising Lord Justice Simon, Mrs Justice Cheema-Grubb and Her Honour Judge Dhir QC, held that whilst section 125(1) of the Coroners and Justice Act 2009 mandates that every judge have regard to a relevant guideline, departure is permissible where justice demands and there must be a good reason which should be articulated. The guideline provides that a case of particular gravity, reflected by multiple features of culpability or harm, can merit upward adjustment from the starting point, potentially beyond the category range. But such a departure must be capable of rational explanation.
The Court accepted that the proliferation of serious features required a firm sentence but was persuaded that the judge had passed a manifestly excessive sentence. A sentence within the category range was required. A term of six years’ imprisonment for all the offending was appropriate, reached from a provisional nine-year term before full credit for the guilty plea was applied. Nine years represented an uplift from the guideline starting point of five years to reflect the multiplicity of high culpability factors but remained within the category range. A proportionate reduction was made to the sentence on count 3.
Accordingly, the appeal succeeded to the extent that the sentences on counts 5 and 6 were reduced from eight years to six years and the sentence on count 3 was reduced from six years to four years. All terms continued to run concurrently. In short, a total sentence of six years’ imprisonment replaced the original eight years where the judge had departed from the category range without adequate justification for doing so.
The appellant pleaded guilty to two counts of sexual activity with a child and making an indecent photo of a child. He was sentenced to 8 years’ imprisonment.
The appellant was a man of previous good character who met up with a 15-year-old girl who he contacted over Facebook. He plied her with alcohol until she was heavily intoxicated. He then had sex with her vaginally and orally, and filmed it on a mobile phone without her knowledge.
The principal point of the appeal was that although there were several aggravating features to the offending, the starting point taken was outside of the category range.
Held: the proliferation of serious features of the offending required a “firm sentence”, but the judge went beyond that. A sentence within the category range was required, and a term of 6 years was appropriate.