TF [2019] EWCA Crim 1785
Summary
TF [2019] EWCA Crim 1785 concerned an appeal by TF against sentence in the Court of Appeal (Lord Justice Simon, Mrs Justice Cockerill and His Honour Judge Bate). The court allowed the appeal, substituted the immediate custodial term with a suspended sentence, and held that the sentencing judge had erred in categorising the offending as culpability category A.
On 19 June 2019 in the Crown Court at Stoke-on-Trent, TF had pleaded guilty 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 and two counts of sexual activity with a child contrary to section 9(1) of that Act. His Honour Judge Glenn sentenced him to two years and six months’ imprisonment on each count, to run concurrently.
The victim, EB, was TF’s cousin through marriage. They first made contact when TF was around fifteen and EB around twelve. When TF was nineteen and EB fourteen they began to communicate more regularly, including in person. Although some communication was supportive, their exchanges became highly sexualised, involving explicit messages, images and videos. At TF’s instigation EB was encouraged to penetrate her own vagina with her fingers (count one). Between 7 and 10 July 2017, during a walk from EB’s house, EB performed oral sex on TF (count two) and TF penetrated EB’s vagina with his penis (count three). Both acts were consensual. Intercourse was unprotected and TF called EB a “slut” and a “whore” during the encounter. EB later disclosed what had happened to a support worker and the police were contacted. In interview, EB stated that she had engaged willingly and suggested their maturity was comparable, though she described TF as overbearing and as the initiator. TF admitted the offending in a November 2017 police interview and pleaded guilty promptly thereafter.
In passing sentence the judge categorised all three offences as falling within category 1 (penetration) and culpability category A. He found significant planning and grooming behaviour, together with an element of abuse of trust, and treated unprotected intercourse as an aggravating feature. He gave credit for TF’s good character, early guilty plea (full one-third credit), remorse, intelligence, decent work record, delay in the proceedings and references. He took account of EB’s interview and letter. He concluded that only immediate custody was appropriate.
TF appealed on the basis that the offending should have been categorised as 1B rather than 1A, and that the sentence was manifestly excessive. He argued that the judge gave insufficient weight to the pre-sentence report and that a suspended sentence or community order would have been appropriate. Leave was granted by the single judge on the question of culpability.
The Court of Appeal accepted the submissions of Mr Hennessy, the solicitor advocate for TF. The court considered whether the factors relied upon by the judge – grooming, significant planning and abuse of trust – were properly established. As to abuse of trust, the court applied R v Forbes [2016] EWCA Crim 1388, in which it was held that the guideline requires close examination of the facts and that the phrase connotes something more than mere association or familial relationship. The court cited R v LO [2018] EWCA Crim 1465, which emphasised that abuse of trust requires inequality of power, often involving a duty of care. The court concluded that the relationship between cousins in this case did not amount to an abuse of trust.
On grooming, the court held that although the judge’s approach was understandable, grooming in this context should be understood in its legal sense: winning the confidence of a victim to commit a sexual assault. The court hesitated to categorise the case as one of grooming, though it accepted that once the relationship was established there might have been a grooming element in the initiation of the image-exchange which facilitated more intimate contact.
As to planning, the court emphasised that the guideline requires a significant degree of planning and noted that some limited planning is insufficient. The court observed that assistance in calibrating the threshold may be gained by considering the other category A factors listed in the guideline, such as acting together with others, use of alcohol or drugs to facilitate offending, or hostility-based motivation, all of which indicate the higher culpability required for the most serious offending of this type. The court held that while many cases involve some planning, this case did not reach the requisite threshold. TF’s presence at EB’s home resulted from an invitation by her mother, not from his own planning, and the offences on counts two and three were largely, though not entirely, spontaneous. The court therefore concluded that the case did not involve a significant degree of planning and, revisiting the position on grooming in light of the guideline’s structure, held that the judge had drawn the line on grooming in the wrong place.
The court held that the learned judge erred in categorising the case as 1A and that it should have been categorised as 1B, which has a starting point of one year’s imprisonment and a range of a high-level community order to two years’ imprisonment. The court took into account that there were three separate offences but found that the mitigating factors (remorse, good character and the relative immaturity of TF) outweighed the aggravating features. The court concluded that the custody threshold was passed and that neither a fine nor a community order was justified, but determined that a sentence of one year adequately reflected the criminality.
The court then considered whether the sentence could be suspended. It had regard to the relevant guideline on the imposition of community and custodial sentences and took into account the pre-sentence report, which assessed TF as low risk of further offending with realistic prospects of rehabilitation, together with the personal mitigation urged on his behalf. The court concluded that there was no reason why the sentence could not be suspended for an operational period of one year.
In short, the appeal was allowed, the sentence of two years and six months’ imprisonment was quashed, and a sentence of one year’s imprisonment suspended for one year was substituted, with the time served to form part of the order.
On 19 June 2019 in the Crown Court at Stoke-on-Trent, TF had pleaded guilty 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 and two counts of sexual activity with a child contrary to section 9(1) of that Act. His Honour Judge Glenn sentenced him to two years and six months’ imprisonment on each count, to run concurrently.
The victim, EB, was TF’s cousin through marriage. They first made contact when TF was around fifteen and EB around twelve. When TF was nineteen and EB fourteen they began to communicate more regularly, including in person. Although some communication was supportive, their exchanges became highly sexualised, involving explicit messages, images and videos. At TF’s instigation EB was encouraged to penetrate her own vagina with her fingers (count one). Between 7 and 10 July 2017, during a walk from EB’s house, EB performed oral sex on TF (count two) and TF penetrated EB’s vagina with his penis (count three). Both acts were consensual. Intercourse was unprotected and TF called EB a “slut” and a “whore” during the encounter. EB later disclosed what had happened to a support worker and the police were contacted. In interview, EB stated that she had engaged willingly and suggested their maturity was comparable, though she described TF as overbearing and as the initiator. TF admitted the offending in a November 2017 police interview and pleaded guilty promptly thereafter.
In passing sentence the judge categorised all three offences as falling within category 1 (penetration) and culpability category A. He found significant planning and grooming behaviour, together with an element of abuse of trust, and treated unprotected intercourse as an aggravating feature. He gave credit for TF’s good character, early guilty plea (full one-third credit), remorse, intelligence, decent work record, delay in the proceedings and references. He took account of EB’s interview and letter. He concluded that only immediate custody was appropriate.
TF appealed on the basis that the offending should have been categorised as 1B rather than 1A, and that the sentence was manifestly excessive. He argued that the judge gave insufficient weight to the pre-sentence report and that a suspended sentence or community order would have been appropriate. Leave was granted by the single judge on the question of culpability.
The Court of Appeal accepted the submissions of Mr Hennessy, the solicitor advocate for TF. The court considered whether the factors relied upon by the judge – grooming, significant planning and abuse of trust – were properly established. As to abuse of trust, the court applied R v Forbes [2016] EWCA Crim 1388, in which it was held that the guideline requires close examination of the facts and that the phrase connotes something more than mere association or familial relationship. The court cited R v LO [2018] EWCA Crim 1465, which emphasised that abuse of trust requires inequality of power, often involving a duty of care. The court concluded that the relationship between cousins in this case did not amount to an abuse of trust.
On grooming, the court held that although the judge’s approach was understandable, grooming in this context should be understood in its legal sense: winning the confidence of a victim to commit a sexual assault. The court hesitated to categorise the case as one of grooming, though it accepted that once the relationship was established there might have been a grooming element in the initiation of the image-exchange which facilitated more intimate contact.
As to planning, the court emphasised that the guideline requires a significant degree of planning and noted that some limited planning is insufficient. The court observed that assistance in calibrating the threshold may be gained by considering the other category A factors listed in the guideline, such as acting together with others, use of alcohol or drugs to facilitate offending, or hostility-based motivation, all of which indicate the higher culpability required for the most serious offending of this type. The court held that while many cases involve some planning, this case did not reach the requisite threshold. TF’s presence at EB’s home resulted from an invitation by her mother, not from his own planning, and the offences on counts two and three were largely, though not entirely, spontaneous. The court therefore concluded that the case did not involve a significant degree of planning and, revisiting the position on grooming in light of the guideline’s structure, held that the judge had drawn the line on grooming in the wrong place.
The court held that the learned judge erred in categorising the case as 1A and that it should have been categorised as 1B, which has a starting point of one year’s imprisonment and a range of a high-level community order to two years’ imprisonment. The court took into account that there were three separate offences but found that the mitigating factors (remorse, good character and the relative immaturity of TF) outweighed the aggravating features. The court concluded that the custody threshold was passed and that neither a fine nor a community order was justified, but determined that a sentence of one year adequately reflected the criminality.
The court then considered whether the sentence could be suspended. It had regard to the relevant guideline on the imposition of community and custodial sentences and took into account the pre-sentence report, which assessed TF as low risk of further offending with realistic prospects of rehabilitation, together with the personal mitigation urged on his behalf. The court concluded that there was no reason why the sentence could not be suspended for an operational period of one year.
In short, the appeal was allowed, the sentence of two years and six months’ imprisonment was quashed, and a sentence of one year’s imprisonment suspended for one year was substituted, with the time served to form part of the order.
The appellant pleaded guilty to causing or inciting a child to engage in sexual activity and two counts of sexual activity with a child. He was sentenced to 2 years and 6 months ‘ imprisonment.
The appellant and complainant were cousins through the marriage of older relatives. When the appellant was 19 and the complainant 14 they began to communicate more regularly than before, the chats becoming highly sexualised. During a message exchange, the appellant encouraged the complainant to penetrate herself digitally.
They also met up, and the complainant performed oral sex on the appellant, and they had penetrative sex. The activity was consensual. The complainant said that she did not want to get the appellant into trouble, that she was a willing participant and saw them as of comparable maturity.
Held: the judge erred in categorising this case as category A, it should have been categorised as a 1B offence. Bearing in mind the mitigating factors outweighed those which aggravated the offence, the appropriate sentence was one year. The appellant was assessed as a low risk of further offending, and there was a realistic prospect of rehabilitation. The Court therefore concluded that the sentence could be suspended for a period of one year.