No: 200801155/A5 
Neutral Citation Number: [2008] EWCA Crim 1029
IN THE COURT OF APPEAL
CRIMINAL DIVISION 
Royal Courts of Justice
Strand
London, WC2A 2LL 

Tuesday, 22nd April 2008
 
B e f o r e:

LORD JUSTICE HUGHES
MR JUSTICE DAVID CLARKE 
 
MR JUSTICE BLAIR 
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R E G I N A 

v 

WAYNE GARY FREW 
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Mr C Dunn appeared on behalf of the Appellant
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J U D G M E N T
1.	MR JUSTICE DAVID CLARKE:  On 4th February 2008 in the Crown Court at Leeds, the appellant, Wayne Frew, aged 29, pleaded guilty to an offence of sexual activity with a child.  On 25th February he was sentenced to 2 years' imprisonment by His Honour Judge Magill sitting in the Crown Court at Leeds.  A Sexual Offences Prevention Order was also made, indefinite in time, under section 104 of the Sexual Offences Act 2003, and we shall return to that later in this judgment.  No publication must be made of any material which might identify the victim of this offence.
2.	The appellant was aged 28 at the time of the offence and the young lady concerned was aged fifteen‑and‑a‑half.  They were members of the same martial arts club.  They were both highly proficient in the particular form of martial arts in which they engaged, both being black belts.  He knew her age; she attended the club in her school uniform.  
3.	On 16th March 2007 the two of them were at a party and after the party the appellant invited the complainant and another young couple back to his home.  The other couple went to a bedroom and he persuaded her, as it was put to the judge, to go to his bedroom.  It is quite clear that she was willing to do so.  She later admitted that she had been attracted to him.  She had a crush on him, as it was put.  Sexual intercourse took place.
4.	The complainant had suggested in interview that the appellant did not use a condom but later on she said that he did but it came off in the course of the sexual act.  A friend later told the police that the complainant had told her that she had left her knickers and a condom in his room; she wanted him to split up from his girlfriend so that she could get together with him.
5.	Subsequently, and very sadly, it transpired that as a result of this incident she became pregnant.  She allowed a long period to go by before telling her parents about it.  She made arrangements to go to London for an abortion.  That took place.  It was a late abortion, some 4 months after conception, and it was a traumatic and distressing period for her and for her family.
6.	The appellant was arrested.  He made no comment in interview, but did not dispute at any stage what had occurred.  In fact a DNA examination of the foetus established the true position.
7.	The appellant had a number of previous convictions between 1995 and 1999, when he was a teenager, including two offences of assault occasioning actual bodily harm, but he had no previous convictions since then, apart from one for driving with excess alcohol in 2005.  He had no sexual offences on his record and had served no previous prison sentence.  
8.	There was a pre‑sentence report before the court.  It indicated that that he accepted full responsibility.  He had been under the influence of alcohol.  He did not remember the act of sexual intercourse because of drink but he accepted it.  He knew that she fancied him and he had failed to discourage her attentions.  He recognised that as an adult he should have kept the relationship at a more distant level.  He was willing to address his offending behaviour, and an alternative to custody was proposed in the form of a suitably tailored community order.  There was also a character reference from an employer before the court.
9.	The judge took a serious view of the case.  He set out the circumstances.  He emphasised that the appellant knew the girl's age, being nearly twice that age himself.  He remarked that she had a crush on him but he added that the law, rightly, is designed to protect girls under 16.  He went on to refer to the disastrous consequences of this act of sexual intercourse and the effect it had had on the girl and her family.
10.	Counsel in well tailored and moderate submissions has submitted that this sentence was manifestly excessive.  Counsel emphasises that this was a single incident, though not of course one in a continuing affectionate relationship, as in many cases of this sort that have been before the court.  But he emphasises, rightly, that this was a wholly consensual incident of sexual intercourse and that the girl was over fifteen‑and‑a‑half; she was some 5 months short of her 16th birthday after which this would not have been an offence.
11.	Our attention has been drawn to two decisions of this Court.  The first is R v Barrass [2006] EWCA Crim 2744, in which the court was presided over by my Lord Hughes LJ.  The case had some similarities to the present case.  The appellant there was 26 rather than 28, but the girl concerned was 14 rather than fifteen‑and‑a‑half.  After a party, sexual intercourse took place between them in a garden near the location of the party.  It was instigated by the girl.  That appellant had many previous convictions but none for sexual offences.  The judge imposed a sentence of 32 months, evidently having worked from an initial starting point of 5 years.  Wrongly that being the starting point for rape offences pursuant to the well‑known case of Millberry.
12.	This Court, in the judgment delivered by Henriques J, reviewed a series of earlier decisions under this Act for offences of this sort:  for single incident offences committed by younger men, sentences of the order of 6 or 9 months were considered appropriate before the publication of the Sentencing Guidelines Council's Definitive Guidelines.  Older men face longer sentences.  In the case of Barrass the sentence was reduced to one of 18 months.
13.	We also have been shown the Attorney‑General's Reference No 43 of 2007 EWCA Crim 1574, the case of Trainer.  This was a reference by the Attorney‑General against a non‑custodial sentence, imposed on a man of 24, who had sexual intercourse with a girl of 14.  He had no previous convictions.  He was of positive good character but there were serious aggravating features there, in the way in which he pestered the girl after the first incident of consensual activity, which was not full intercourse.  She wanted no more to do with him, but by persistent threats and persuasion, he induced her to have full sexual intercourse with him.  This Court was very troubled by that conduct, in particular the harassment of her and her family.  It concluded that a non‑custodial sentence was unduly lenient and imposed an 18 month immediate sentence.  The court did not specify what the sentence would have been but for the usual incidence of double jeopardy applying to it.
14.	Neither of those cases, however, involved the serious aggravating feature of the present case, namely the pregnancy and its consequences.  It was particularly unfortunate in this case, though entirely understandable from the perspective of the girl, that she did not dare to tell her family much earlier, with the result that the abortion procedure was particularly traumatic, painful and unpleasant and no doubt has much more lasting effects than it might otherwise have had.
15.	But the age of the girl in the present case must be taken into account, in our judgment, in assessing the gravity of the offence, because if all these events had occurred 5 months later, even with the same disastrous consequences, no offence would have been committed.
16.	The Sexual Offences Act Definitive Guideline issued by the Sentencing Guidelines Council, dealing with the offence of sexual activity with a child, prescribed in a case of penile penetration, as this of course was, a starting point  of 4 years custody and a sentencing range of 3 to 7 years custody.  In those circumstances, we can well understand the learned judge taking the view that he did, that this case required a sentence of 2 years, which gave a discount for a plea of guilty from a sentence at the bottom end of this range.  But we remind ourselves also that this is a field of sentencing in which a huge range of gravity can appear.  We refer to paragraph 1.3 of the introduction to the guideline which says, and this is in bold type in the published guideline:  
"For these types of offence more than any others, the sentencing process allow for flexibility and variability.  The sentencing starting points and sentencing ranges contained in the offence guideline are not rigid and movement within and between ranges will be dependent upon on the circumstances of individual cases, and in particular the aggravating and mitigating factors that are present."
17.	We have reflected on the submissions made and on that guideline.  We do not accept the submission that the judge had any realistic alternative to an immediate prison sentence in this case.  This was not a case at the bottom end of the range of gravity.  There was a substantial age difference between them, and the consequences of this act, which have already been spelt out in this judgment, were bound to play a significant part in his consideration.  But we do conclude that 2 years was manifestly excessive.  In all the circumstances, we consider that the proper sentence for this offence was one of 18 months.  The length of the prison sentence will be reduced accordingly.
18.	We turn to the Sexual Offences Prevention Order.  This was in very wide terms.  We understand from counsel that the judge having decided that such an order should be made, there was no analysis of the particular provisions which the police had set out in their application as being appropriate for the order.  It was necessary, under section 104 of the Act, for the court to consider whether the order was "necessary for the purpose of protecting public, or any particular members of the public from serious sexual harm from the defendant."
19.	The order included five prohibitions, all imposed until further order:  
1. Seeking to approach or communicating by whatever means directly or indirectly with the victim.  
2. Having any unsupervised contact with any young females under the age of 16 years, except in the presence of that child's parent or guardian or other appropriate adult, save any inadvertent or unavoidable contact with a child under 16 years. 
3.  Inviting into or any young female under the age of 16 year in his house or any other residence or premises of which he resides temporarily or over which he exercises some control, or participating in or being involved whether directly or indirectly in any activity, be it through a school, voluntary group, residence association or any other public or private organisation which by its nature is likely to bring the defendant into contact with a female child under the age of 16 years, in the absence of the child or young person's parent or guardian.  
5.  Seeking or undertaking any employment, whether for payment or otherwise, including voluntary work which is likely at some time to allow him unsupervised access to a female child under the age of 16 years. 
20.	Simply reading that list of prohibitions shows how potentially wide the restriction on his life and activities would be in order to comply strictly with its term.  It has to be remembered that breach of such an order would render him liable to a prison sentence with a maximum of 5 years.
21.	The appellant had committed one sexual offence only, namely a single incident of sexual intercourse with a consenting fifteen‑and‑a‑half year old girl.  The consequence of that act, which have of course been taken into account in considering sentence, do not often themselves make it any more likely that he will commit sexual offences in the future, let alone offences which are likely to cause serious sexual harm.  It seems to us far more likely that it will render him the less likely to commit such offences, considering the consequences of this one.
22.	It seems to us, on consideration, that the underlying foundation for the making of such and order was not present in this case.  It requires a finding that it is necessary for the protection of the public or members of the public from serious sexual harm from this man and that one incident does not seem to us to amount to such a foundation.
23.	The case is perhaps a good example of the need for a court when asked to consider making an order, not only to examine the statutory criteria for making it but also to examine with care each of the individual provisions which it is sought to impose.  In our judgment, this is not an order which was necessary within the statutory definition of this case and we shall quash it.
24.	What the judge did not however do was to apply his mind to the mandatory requirement of section 28 of the Criminal Justice Act and Court Service Act 2000.  We have every sympathy with the judge not doing so, if it was not brought to his attention in this complex area of sentencing law.  But an order disqualifying him from working with children is an order which should have been made and is an order which this court must now make.  Making it does not offend against any of the provisions effecting this court's jurisdiction, or preventing the exercise of that power in this case.
25.	Accordingly the prison sentence is reduced from 2 years to 18 months.  The Sexual Offences Prevention Order is quashed. The court does however impose the order of  disqualification from working with children, pursuant to section 28 of that Act.  The appeal is allowed in those terms.