Yasir Jibran [2019] EWCA Crim 1007
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R v Yasir Jibran [2019] EWCA Crim 1007 concerned an appeal against sentence by the Court of Appeal (Criminal Division) comprising Lord Justice Haddon-Cave, Mr Justice Goss and His Honour Judge Kinch QC, who dismissed the appeal against a sentence of 21 months’ imprisonment for an attempt to meet a child following sexual grooming contrary to section 1(1) of the Criminal Attempts Act 1981.
On 22nd October 2018 in the Crown Court at Newcastle Upon Tyne Mr Jibran, aged 35, changed his plea to guilty on the first day of trial before His Honour Judge Spencer. He was sentenced on 14th January 2019 by Her Honour Judge Moreland to 21 months’ imprisonment. Various ancillary orders were made consequent upon conviction for such an offence. A co-accused, Ashfaq Ahmed, aged 19, received 18 months’ detention on a similar count consecutive to concurrent six-month sentences on other counts.
The case involved the Guardians of the North, a vigilante group which set up fake profiles of children online to catch adults attempting to sexually groom children. Between 21st February and 15th April 2017 Mr Ahmed had been in communication with decoy profiles on Grindr purporting to be boys aged 13 to 15 years old. He sent images of his erect penis, requested nude pictures, sought contact numbers and engaged in sexualised conversations. Between 17th June and 19th April 2018 Mr Ahmed was in contact with the appellant on Grindr. They had not previously met. On 19th April 2018 Mr Ahmed messaged the appellant saying “Speak to the 14-year-old I told you about. I want to know what he is but watch your tracks as don’t want you to get caught” and sent two images from one of the decoy profiles.
On 22nd April 2017 the Guardians of the North set up another fake profile. On 23rd April Mr Ahmed contacted the decoy, ascertained that the profile was 15 years old, sent a picture of a young teenage male and sent a photo of an erect penis with sexually explicit messages. He stated that he was coming with his mate. Mr Ahmed sent the decoy’s profile image to the appellant and told him to message the lad, saying he was 15. At 8.30 pm on 23rd April the appellant sent a direct message to the decoy asking “Up for fun?” The decoy replied that he was 15 and the appellant responded that this was fine if he was up for it and suggested meeting. The decoy asked what they would do and the appellant replied “Kiss, suck, wank. Cock pic or whatever you want to do.” Further messages concerned meeting up and the decoy suggested 10 o’clock when his mother would be in bed.
The appellant and Mr Ahmed exchanged further messages on Grindr. The appellant told Mr Ahmed that the boy was from Gateshead and had agreed to meet. Mr Ahmed warned the appellant that the profile might be fake or Dark Justice and to cover his steps. At around 9 pm the appellant messaged that the boy had replied to come at 10 when his mother would be in bed. The appellant and Mr Ahmed travelled to Kirkdale Green and arrived at 10.05 pm. Representatives of the Guardians of the North detained them pending police arrival. Officers recovered a bag from the defendants’ vehicle containing condoms and lubrication sachets.
In interview the appellant said he was merely dropping off his friend Mr Ahmed who was meeting an unknown person. He said he and Mr Ahmed had met through Grindr the previous week and had a sexual relationship. They had gone out that evening intending to go cruising. He claimed he had no idea whom Mr Ahmed was meeting. Mr Ahmed had sent him an image asking him to establish whether the profile was genuine. He admitted being told the profile was 15 but said he did not tell Mr Ahmed this until they met. He denied any intention to do anything with a child and claimed not to know that Mr Ahmed intended to meet a child that night. He admitted asking the child to send images but said this was to establish whether the account was fake.
The appellant had no previous convictions. The pre-sentence report noted that as a Muslim he had been unable to come out as gay and felt inhibited in his choice of partner. He said he had connected with Mr Ahmed online and thought there was a possibility of a long-term relationship. His motivation was to appear to be colluding with Mr Ahmed rather than reflecting sexual attraction to children. He was highly qualified with two Masters degrees and intended to begin a PhD. He provided financial support to his ailing parents in Pakistan and had never had a long-term relationship. He was assessed as posing a low risk of serious recidivism and general reoffending but a medium risk of sexual recidivism and of causing sexual harm to male children. Given this was his first offence the author suggested the court might consider an alternative to custody, proposing a 24-month order with 20 days’ rehabilitation activity requirement and attendance at the Horizon accredited programme.
In sentencing Her Honour Judge Moreland referred to the observations in R v Solanki [2018] 1 Cr App R (S) 34 concerning culpability in offences of attempting to meet a child following sexual grooming. There were no factors indicating raised harm because no child was or could have been harmed. Culpability was raised because the appellant and Mr Ahmed intended penetrative sexual activity should occur, they were acting together, and they both intended to engage in penetrative sexual activity with a 15-year-old boy. The starting point was two years with a range of one to four years. It was common ground that this was a Category 2 offence under the guidelines. The judge noted that within a day or two of meeting Mr Ahmed on Grindr the appellant was discussing with him a 14-year-old boy whom Mr Ahmed had contacted and discussing other underage profiles. Their conversations showed they both had a common interest in finding partners for sex including underage boys. The judge noted that the appellant’s difficulties in understanding and expressing his sexuality provided no explanation or excuse for acting together with Mr Ahmed to find underage boys for sex. She was satisfied the appellant believed he was going to meet a 15-year-old boy and that both he and Mr Ahmed intended they should both engage in penetrative sexual activity with that boy. She bore in mind she was sentencing for a single offence, that the appellant was a mature man, and took into account his abilities and good qualities. The judge took a starting point of two years and gave 10 per cent credit for plea, arriving at a net sentence of 21 months.
On appeal Mr Lane on behalf of the appellant advanced two grounds. First, he submitted that the starting point of two years was manifestly excessive. In support he argued that the direct contact between the appellant and the decoy was less than 30 minutes, that whilst images were sent there was no evidence of sexual images, there was no evidence that the appellant sought to mislead the decoy about his age, and there was no offer of a gift or financial inducement. Secondly, he submitted that the judge erred in not suspending the sentence given that the appellant had no previous convictions, was assessed as low risk of reoffending, was suitable for the Horizon programme, and had personal mitigation including his financial support for his aged parents in Pakistan.
The offence charged as an attempt to meet a child following sexual grooming was the equivalent of an offence under section 15 of the Sexual Offences Act 2003. Section 15(1) provides that a person aged 18 or over commits an offence if he has met or communicated with another person on one or more occasions and subsequently intentionally meets or travels with the intention of meeting that person or arranges to meet that person, intends to do anything to or in respect of that person during or after the meeting which if done will involve the commission of a relevant offence, that person is under 16, and he does not reasonably believe that person is 16 or over. It was common ground that this was a Category 2 offence. Whilst there was no question of actual harm because the victim was a decoy, the offence fell into Category 2 because the statutory factor indicating raised culpability of offenders acting together with others to commit the offence was present. The starting point for a Category 2 offence was two years’ custody with a category range of one to four years.
Mr Lane’s primary submission was that the case was going to remain inchoate because the victim was a decoy. This submission was addressed in R v Solanki. In paragraph 20 of that judgment Treacy LJ held that the section 15 offence is not concerned with sexual activity which in fact takes place after a meeting but rather the actus reus is present if the offender travels to meet with the intention of committing a sexual offence. The absence of a live victim is reflected by the fact that there are no raised harm factors but does not impact on a finding of raised culpability. Thus the absence of a live victim is already largely reflected by placing the case within Category 2. Similar reasoning applied in the present case to Mr Lane’s submission.
The Court of Appeal emphasised that the key point was that it was clear the appellant and Mr Ahmed were intent on having penetrative sex with the putative underage boy, as evidenced by the bag containing condoms and lubricants found in Mr Ahmed’s car and the exchanges on the web. That factor was a significant feature going to culpability. Whilst the other points raised by Mr Lane had some force, the question was whether the starting point taken by the judge, which was the designated starting point for Category 2 in the guidelines, was manifestly excessive. The court held it was not. The judge was to be congratulated on the clarity and succinctness of her sentencing remarks which reflected very clearly the logic of her analysis and fitted exactly within the purview of Solanki. The court rejected the first ground of appeal.
Turning to the second ground, in view of the seriousness of the offence, the fact that it was conducted in concert with another adult, and the age of the appellant who was a mature man of 35, all those factors militated against suspension of the sentence. The court saw nothing wrong with the judge’s decision either in principle or in fact in concluding that only an immediate custodial sentence would reflect the gravity of the offence. The court rejected the second ground of appeal.
In short, the appeal was dismissed, the starting point of two years being appropriate for a Category 2 offence involving offenders acting together and intending penetrative sexual activity with a child, and immediate custody being necessary to reflect the gravity of the offence notwithstanding the appellant’s personal mitigation.