No: 200601310 A4 
Neutral Citation Number: [2006] EWCA Crim 1040
IN THE COURT OF APPEAL 
CRIMINAL DIVISION 
Royal Courts of Justice
Strand
London, WC2 

Date: Wednesday, 12th April 2006

B E F O R E:

LORD JUSTICE HOOPER 

MR JUSTICE MCCOMBE 

MR JUSTICE WILKIE 

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REFERENCE BY THE ATTORNEY GENERAL UNDER 
S.36 CRIMINAL JUSTICE ACT 1988 
 
ATTORNEY-GENERAL's REFERENCE NO 31 OF 2006    
 
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Computer Aided Transcript of the Stenograph Notes of 
Smith Bernal Wordwave Limited
190 Fleet Street  London EC4A 2AG
Tel No: 020 7404 1400 Fax No: 020 7831 8838
(Official Shorthand Writers to the Court)
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MR M DENNIS appeared on behalf of the ATTORNEY GENERAL
MR M WYETH appeared on behalf of the OFFENDER
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J U D G M E N T 

1.	LORD JUSTICE HOOPER:  The Attorney General seeks leave to refer to this court as unduly lenient a sentence of two years' imprisonment passed on Isaac Mutubila on 20th February 2006 for an offence contrary to section 5(1) of the Sexual Offences Act 2003.  That provides:
"A person commits an offence if -
(a)	he intentionally penetrates the vagina, anus or mouth of another person with his penis, and 
(b)	the other person is under 13."
By virtue of subsection (2), a person guilty of this offence is liable on conviction to imprisonment for life.
2.	The offender had pleaded guilty on 2nd December 2005.  Sentence was adjourned for the preparation of a pre-sentence report and there was a direction that written representations as to the basis of the plea be provided by the defence.
3.	On 5th January 2006 the offender's solicitors wrote this letter to the Crown Prosecution Service:
"We act for the above named who pleaded guilty before Ipswich Crown Court on 2nd December 2005.  
Please find enclosed a copy of our client's basis of plea.  We can confirm that a copy of this document has been forwarded to the Court.  
We are informed that where there is a basis of plea the Probation Service will only prepare a pre-sentence report based on an agreed basis of plea and so we would be grateful to receive your comments regarding our client's basis of plea at your earliest possible convenience."
Attached to that letter was the basis of the plea, which read as follows:
"1.  I accept I had vaginal intercourse with [S].
2.  The said intercourse was consensual.
3.  [S] performed consensual oral sex on me.
4.  At all times during the above sexual activity I believed [S] to be aged at least 18 years old.
5.  [S] had told me prior to meeting her that she was 24 years old.
6.  The circumstances leading up to our meeting on the 29th July 2005 were are as follows:-
 (i)	[S] subscribed to a mobile dating agency called 'The Dating Channel' on Sky Cable television.
 (ii)	I received [S]'s details from the said agency.  I want to make it clear that the adverts on the television for this service state clearly that all participants in the service are aged 18 and over.
 (iii)	Over a period of approximately 6 days [S] sent me a series of explicit texts and made a number of telephone calls inviting me to visit her for the purpose of having sexual intercourse (see telephone analysis charts provided by Jane Cox for volume of calls by [S] to my home and mobile phone numbers).  (See also p.45 Ex).  (p.46 Ex & 47 & 49 Ex for terms of texts)
 (iv)	Specifically on age - [S] told me she was 24 and worked as a pole dancer in a nightclub.  The age representation is endorsed at p.80 of the exhibit bundle.  The pole dancer representation at p.102 Ex.
 (v)	The text evidence reveals the following:-
 (a)	On 25.7.05 I asked [S] to send pictures of herself (see p.19 Ex)
 (b)	On 28.7.05 I asked [S] 'what year were you born?' (p.22 Ex)
 (c)	On 28.7.05 I suggested to [S] that when we met up on the 29th she should tell her mum that she was 'goin work', ie going to work.  I said this because I believed [S] was in full time employment (see p.22 Ex)
 (d)	On 29.7.05 [S] texted me to let her know her mother had gone out (see p.25 Ex)  
 (e)	On 29.7.05 [S] texted me to say that 'I don't like men wearing condoms anyway babe' see p.50 Ex)
7.  When [S]'s mother interrupted us on 29th July 2005 [S] explained to her mum downstairs that she had lied to me about her age.
8.  If I had any idea [S] was under age, I would never have behaved in this way."
4.	On 26th January the offender's solicitors sent a letter, referring the Crown Prosecution Service to the earlier letter and stating that they would be grateful to hear whether or not the basis of plea was accepted.  Another chasing letter was sent on 14th February, again asking for a response.  The response did come, but only on 16th February 2006, that is a month and a half or so after the initial request.  The letter reads:
"Further to our recent conversations I can confirm that the Crown does not accept the basis of plea but does not seek to dispute it."
That letter is signed by a person who describes himself as a "Caseworker".  Given the contents of the letter, there was no need now to fix a Newton hearing and the probation officer could go ahead and prepare the pre-sentence report.  That letter made it clear that the prosecution was not going to dispute the basis of the plea.
5.	On 20th February the offender appeared before His Honour Judge Holt.  The judge had the basis of plea and he also had a "Note re sentencing".  The first three paragraphs of that note read as follows:
"1.  This short note is prepared in accordance with best practice in the passing of sentence for offences under the Sex Offences Act 2003 as set out in R-v-Pepper 2005 EWCA by Rose J.
2.  On the 2nd of December 2005 the defendant entered a plea of guilty to Count 1 of the indictment - an allegation of rape of a child under 13, contrary to Section 5(1) of the Sexual Offences Act 2003.  The plea appeared to be acceptable to the prosecution - with representations to the prosecution re basis of plea to follow.
3.  The defence served a considered written basis of plea on the prosecution in early January.  I am aware that my instructing solicitors have chased the prosecution for a response re the written basis.  I am given to understand that the prosecution's official stance on our written basis is that they neither accept nor can gainsay the basis.  A copy of the written basis is annexed hereto."
6.	We turn to the final reference and set out those facts from the final reference which were not apparently in dispute:
"(i)	The victim was [S], who was aged 12, having been born on the 24th April 1993.  She lived with her mother and 14 year old sister in Newmarket, Suffolk.  Her mother supported the family by working in a public house close to their home.  The girls were left unsupervised while she was at work, and could come and go from their home as they pleased.
 (ii)	The Dating Channel is broadcast on Sky television.  It does not show television programmes, but displays text messages sent from a customer's mobile phone.  These messages invite viewers to contact them via a box number provided by the channel.  Customers are required to provide a date of birth before being allowed to use the service.  The service is meant to be available only to people over the age of 18.
 (iii)	On the 12th July 2005 [S] registered with the Dating Channel.  She gave her date of birth as 24th April 1985, saying that she was 20.  She then sent a series of text messages for display on the channel, advertising herself as a 'sexy single dancer', who wanted to meet males aged between 18 and 25.
 (iv)	The offender responded to her message and contacted her.  He also gave false details, claiming to be a 25 year old called Scott.  There followed a large number of text messages and telephone calls between them (124 text messages in the week before their meeting).  Most of the text messages were extremely sexually explicit.  [S] told the offender that she was aged 24, and a lap dancer.  He later told her that he was in fact aged 27.  They arranged to meet, with the offender travelling to Newmarket.  [S] sent him a message telling him to ring her on her house phone, as 'my mum wil b at work n my sis wil prob b out by then'.
 (v)	She met the offender at Newmarket station ...
 (vi)	Nevertheless, they walked together to [S]'s home.  She put music on.  They kissed and cuddled.  The offender then said 'Let's go upstairs for a quickie before your sister gets home'.  They went upstairs to [S]'s mother's bedroom, where there was a double bed.  She knew that they were going upstairs for sex.  She was a virgin.
 (vii)	... He penetrated her with his finger, then with his penis ... He ejaculated inside her.  He did not use a condom.  He then ... put his penis in her mouth.  
 (viii)	The next door neighbour had seen [S] going into the house with a black male.  He heard loud female moaning noises, of a sexual nature, coming from [S]'s house.  He contacted [S]'s mother [TL] who quickly returned home.
 (ix)	She found [S] and the offender lying in bed together.  They had covered themselves with the duvet.  When she pulled it back, both [S] and the offender were naked from the waist down.  [TL] reacted with fury, shouting 'She's only 12, you black bastard'.  The offender told her that nothing had happened.  [S] said nothing.
 (x)	She grabbed his clothing to prevent him from leaving.  The police were called.  When the neighbour arrived, she allowed the offender to get dressed.  He said to [S] 'What have you done?  You lied to me'  He told [TL] that she had told him that she was 24.  [TL] told him that he would go to prison for this, and he started to cry.
 (xi)	When the police arrived, [S] was asked if she had consented to sex with the offender.  She said that she had.
 (xii)	The doctor who examined her found no obvious tears either of the hymen or within the vagina.  Examination of swabs taken from her confirmed the presence of semen in her vagina.
 (xiii)	In interview, the offender gave a prepared statement in which he said that [S] had told me that she was 24, and he did not believe her to be anything other than the age she had told him.  He said that he did not engage in any sexual activity without her consent.  He declined to answer questions about the sexual activity that they engaged in." 
7.	We turn to the opening by counsel for the prosecution on 20th February.  No mention is made by her of the basis of plea.  At page 3H of the transcript of her opening, counsel said this:
"At this point, they then went upstairs and he said to her, 'Let's go upstairs for a quickie before your sister gets home'.  At this point, she was initially willing to do this and they both went upstairs and into her mother's bedroom where there was a double bed.
As he undressed, [S] then began to feel uncomfortable and described herself as feeling panicky and said that she told him she did not want to do this.  He said to her, 'Yes, you do'.
He then pushed her backwards and onto the bed.  Again, there was kissing with which she did feel comfortable.  He then lied on top of her and took her top off and began touching her vagina.
He first of all digitally penetrated her which she described as hurting and again, she told him she did not want to do it.  He then penetrated her with his penis and she complained that it hurt.  He told her that it would go away in a minute or two.
No condom was used and he ejaculated inside of her.  She told him to get off her and she pushed him in the chest.  After intercourse, they were both lying in bed together, partially clothed but naked on the bottom half and he pushed her head under the covers and she took his penis into her mouth.  He pushed her head down towards it." 
8.	A little later, the judge asked the question: "How developed, generally, was [S] at the age of 12?"  Counsel asked whether he meant by that, how old did she look.  Counsel continued:
"MISS GIBBS: Your Honour, I know there is some dispute about this between my learned friend and myself.  I have spoken to the officer in the case who tells me that at best, with make up on, this girl looked 14 years of age.  I know my learned friend begs to differ and the video memorandum in his opinion shows that she looks older than that, but it is essentially a matter for your Honour.
JUDGE HOLT:  Well, I have not seen any video memorandum or photographs save black and white which I think have come off the net, which are hopeless.
MISS GIBBS:  Your Honour, there are none of [S].  Those photographs that your Honour has are not of [S].
JUDGE HOLT:  It is impossible to know anyway".
9.	We turn to the mitigation.  Mr Wyeth, who appeared for the offender, referred to the basis of plea.  There are two particular passages to which we should make reference.  The first is an intervention by the judge who, shortly after the beginning of mitigation, referred to the sentencing note and to the contents of it.  The judge then went on to say:
"I think I have some difficulty in accepting that your client was not at the very least put on considerable notice when he met this girl when she was only aged 12 that she had not significantly lied about her age."
10.	The other passage to which it is necessary to refer relates to the issue of consent.  Mr Wyeth said this:
"However, your Honour, of course, there is a difference between the prosecution and the defence in relation to that matter, and of course, I do not expect the Crown to accept the defendant's account of it, but that is his version."
By that he was referring to the offender's account of the events.  Strictly, in our view, Mr Wyeth was right that the Crown did not accept the defendant's account.  Nonetheless, he could have added "but they do not dispute it".  He did not do so.
11.	We turn to the sentencing remarks.  The judge started his sentencing remarks by setting out what he described as the brief circumstances.  He said:
"You got to know your victim through a dating channel on Sky cable television and over a period of five days, you exchanged very explicit text messages.
It is right that she told you she was aged 24 and the minimum age for subscribing to that dating channel is 18, but there came a time after only some five days when you arranged a meeting in her town and to go to her house.
When you met, it must have been obvious and you are a man aged 29 and you indeed had lied about your age to some extent, it must have been obvious, first of all, that she was under 18 and therefore, had lied about her age.  Secondly, it must have been obvious to you that she was a very young teenager.  The police judgment is that when made up, she could look to be about 14.
You, however, keen for sex, suggested that you both go upstairs and at that time, it was consensual, but when getting undressed, she expressed reluctance and said in terms that she did not want to do it, but you persuaded her to continue and you had unprotected sex and an attempt at oral sex.
Those are the brief circumstances.  You are a man who hitherto has not been in trouble with the courts.  You have no previous convictions and I have two references which do you credit and you have pleaded guilty at the earliest opportunity." 
12.	In that passage, when the judge said "it must have been obvious to you that she was a very young teenager", the judge appears to have been saying to the defendant that he did know, when he was in the house with her, that she was around the ages of 13 or 14.  That, of course, is inconsistent with the basis of plea.  
13.	Insofar as consent is concerned, the judge said that she had expressed reluctance and had said in terms that she did not want to do it.  He continued, as we have seen in the passage we have set out, "but you persuaded her to continue and you had unprotected sex and an attempt at oral sex".  
14.	During the course of argument, Mr Dennis, on behalf of the Attorney General, submitted that the judge there was making a finding of fact that she had not consented.  If that is a correct interpretation of the passage, then a sentence of two years would seem, on the face of it, to be remarkable.  Another interpretation which we suggested to Mr Dennis during the course of argument was that the judge was accepting that she had consented, but was going on to comment that she did so only because he had persuaded her.  
15.	It is unfortunate that, on such a crucial issue as consent, the judge's words were not clear.  We note also that there is no reference to the burden of proof.  
16.	In our judgment, the sentencing process was fundamentally flawed in this case.  Issues as to consent and a defendant's belief as to age, or reasonable belief as to age, are crucially important when it comes to deciding the appropriate sentence.  Taking alone the issue of consent, a finding that the complainant did not consent could result in a defendant receiving many more years of imprisonment.  
17.	As Mr Dennis accepts, on behalf of the Attorney General, there should have been a Newton hearing in this case.  In our view, the letter to which we have referred dated 16th February 2006 ought never to have been written if the complainant's account of what occurred was accepted by the prosecution.  Prosecuting counsel should have made it clear at the outset that the letter sent on 16th February no longer expressed the views of the prosecution.  At that stage the judge should have been invited to hold a Newton hearing, or at the least take the necessary steps by questioning Mr Wyeth as to whether a Newton hearing was in fact necessary.  In other words, the judge would have been asking Mr Wyeth whether the basis of plea was still being maintained.  
18.	What happened in this case is quite inconsistent with the "Attorney General's Guidelines on the Acceptance of Pleas and the Prosecutor's Role in the Sentencing Exercise" dated October 2005.  The following paragraphs, amongst others, seem to us to be important:
"A1.  Prosecutors have an important role in protecting the victim's interests in the criminal justice process, not least in the acceptance of pleas and the sentencing exercise.  The basis of plea, particularly in a case that is not contested, is the vehicle through which the victim's voice is heard.  Factual inaccuracies in pleas in mitigation cause distress and offence to victims, the families of victims and witnesses ...
C3.  The written basis of plea must be considered with great care, taking account of the position of any other relevant defendant where appropriate.  The prosecution should not lend itself to any agreement whereby a case is presented to the sentencing judge on a misleading or untrue set of facts or on a basis that is detrimental to the victim's interests.  There will be cases where a defendant seeks to mitigate on the basis of assertions of fact which are outside the scope of the prosecution's knowledge.  A typical example concerns the defendant's state of mind.  If a defendant wishes to be sentenced on this basis, the prosecution advocate should invite the judge not to accept the defendant's version unless he or she gives evidence on oath to be tested in cross-examination ...
C9.  Where the basis of plea cannot be agreed and the discrepancy between the two accounts is such as to have a potentially significant effect on the level of sentence, it is the duty of the defence advocate so to inform the court before the sentencing process begins.  There remains an overriding duty on the prosecuting advocate to ensure that the sentencing judge is made aware of the discrepancy and of the consideration which must be given to the holding of a Newton hearing to resolve the issue.  The court should be told where a derogatory reference to a victim, witness or third party is not accepted, even though there may be no effect on sentence."
We would hope that these guidelines are more widely made available than they appear to be so, and we hope that they will appear in the two leading practitioners' textbooks.
19.	Absent a finding at a Newton hearing that the basis of plea was not correct, or absent a concession by Mr Wyeth that the basis of plea was no longer being maintained, the judge, in our view, had to sentence the offender on the basis of plea which he had tendered in January.  Although the Attorney General may wish to argue in a future case that, even on the basis of plea, a two year sentence was unduly lenient, Mr Dennis tells us he does not wish to argue that in this case given its history.  In those circumstances, we refuse leave and express the hope that what happened in this case does not happen again.