No. 2008/02914/A8
Neutral Citation Number: [2008] EWCA Crim 1974

IN THE COURT OF APPEAL
CRIMINAL  DIVISION
Royal Courts of Justice
The Strand
London
WC2A 2LL

Thursday  31  July  2008

B e f o r e:

LORD  JUSTICE  TOULSON

MR  JUSTICE  JACK

and

THE  RECORDER  OF  HULL
(Sitting as a Judge of the Court of Appeal, Criminal Division)

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R E G I N A

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STUART  DAVID  PRICE
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Mr T Harrington appeared on behalf of the Appellant

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J U D G M E N T
Thursday  31  July  2008

LORD JUSTICE TOULSON:  I will ask Mr Justice Jack to give the judgment of the court.

MR JUSTICE JACK:
1.  On 11 April 2008, in the Crown Court at Stafford, the appellant, Stuart Price, pleaded guilty to one count of causing or inciting a child to engage in sexual activity, contrary to section 10 of the Sexual Offences Act 2003.  On 16 May 2008 he was sentenced by His Honour Judge Eades to 16 months' imprisonment.  He appeals against that sentence by leave of the single judge.

2.  The offence came about in this way.  The appellant is aged 37.  Together with his father he ran a small bus company which had a contract for taking children to and from school.  One of the children carried on the bus was RS, a girl aged 14.  The appellant was the driver of the bus.  RS used to sit at the front and became friendly with him.  In March 2007 they began to exchange text messages.  After a while these became explicitly sexual in content, including references to fellatio.  She sent him photographs of herself, including ones of her vaginal area.  In three photographs she had her fingers inserted into her vagina.  On two occasions he sent her photographs of his erect penis.  They also exchanged discreet sexual mimes while he drove the bus.  RS spoke to her friends about the relationship and in May one of them spoke to her parents.  The relationship therefore lasted a little over two months.  The appellant and RS never met outside the bus, although arrangements were made for them to meet which came to nothing.

3.  Section 10 of the Sexual Offences Act 2003, so far as relevant, provides:

		"(1)  A person aged 18 or over (A) commits an offence if -- 

			(a)	he intentionally causes or incites another person (B) to engage in an activity, 

			(b)	the activity is sexual, and

			(c)	either --

				(i)	B is under 16 and A does not reasonably believe that B is 16 or over, or 

				(ii)	B is under 13.

		(2)  A person guilty of an offence under this section, if the activity caused or incited involved --

			(a)	penetration of B's anus or vagina,

			....

		is liable, on conviction on indictment, to imprisonment for a term not exceeding 14 years."

4.  The case against the appellant was that by sending the kind of text messages he did he caused and incited RS to insert her finger into her vagina for the purposes of a photograph.  Although this was an unusual application of the section, the conduct fell within it just as it would have done if the appellant had been present when the photograph was taken.  The case, therefore, was not that he requested the photographs but that they were a natural consequence of his conduct and were incited in that way.

5.  The appellant's basis of plea was as follows:

		"1.  The [appellant] accepts that he knew [RS] was under 16 from an early stage, albeit she looked older.

		2.  The text messages were not sexually explicit to begin with but became so, both [RS] and the [appellant] sending sexually explicit material.

		3.  [RS] sent the first sexualized picture of herself unsolicited in that the [appellant] did not ask for it, but accepts that the nature of the text messages would have encouraged this behaviour and indeed did thereafter.  Approximately three of the subsequent pictures involved [RS] penetrating her own vagina with her finger.

		4.  The [appellant] twice sent the same picture of his erect penis to [RS].  Any other pictures were not of a sexual nature.

		5.  The [appellant] admits that he said he would meet [RS] but did not do so and never intended to do so.

		6.  The [appellant] never did touch [RS] in any sexual way."

That basis of plea was accepted by the court.

6.  The appellant was of previous good character.  The pre-sentence report stated that he had been flattered by the attentions of a young girl and felt his self-image to be enhanced.  He lived at home with his parents.  Prior to 2007 he had had only one relationship which began when he was 21 and had lasted five years.  The report said that he had some insight into the harm that he had caused both to RS and to her family and to his own family.  The author of the report assessed the likelihood of his re-offending as low; likewise, harm to children and to the general public.

7.  In addition to her video interview describing the events, RS gave an interview describing the effect on herself.  She had been affected in her family life and in her school life.  She said that she had little confidence in herself and felt betrayed.

8.  The judge began his sentencing exercise by referring to the definitive guidelines of the Sentencing Guidelines Council.  He stated that the guidelines were not directly applicable because they envisaged a second party indulging in the sexual act rather than the defendant.  For penile penetration of the vagina, anus or mouth, or penetration of the vagina or anus with another body part or an object, the guideline gives a starting point of four years' custody, with a range of three to seven years.  We agree that those figures relate to conduct substantially more serious than the present.  The judge then referred to the appellant's position as the school bus driver and his involving RS as a schoolgirl.  He said:

		"It must have been obvious to you that she had formed a sort of crush upon you, and rather than acting as a mature, sensible adult, you positively encouraged it and went along with it in the way that I have already described.

		Children aged 14 are entitled to expect adults .... to act responsibly and if a 14 year old child has a crush on an adult, to gently and nicely turn the child away.  You did not do that and thus you end up here in the dock."

We would add that not only did the appellant not turn RS away, their communications were centred on sex.  He was in a position of trust towards RS, and he grossly abused that trust.

9.  The judge stated that a custodial sentence was required and that it could not be suspended.  With that we agree.  A sentence of 16 months' imprisonment following an early plea is equivalent to one of two years following a trial.  That must have been the judge's starting point.  The sole question for us was whether it was too high.  We must bear in mind that, however objectionable the appellant's conduct was, he had not actually asked RS to send the photographs.  It was something which followed from the way that they behaved towards each other, in particular the way in which he behaved towards her.  That is where the incitement lay.  Further, and more important, there was no direct sexual contact between the appellant and RS.  We have referred to part of the guideline.  It also gives a starting point of two years for "contact between naked genitalia of the offender and naked genitalia of another part of the victim's body, particularly face or mouth".  It gives twelve months as a starting point for lesser contact.  

10.  The judge here did not face an easy task.  However, we conclude that the sentence that he imposed was too high.  We think that the correct sentence in this case, after discount for plea, was one of nine months.  We consider that this reflects the gravity of the appellant's conduct towards this 14 year old girl.  That sentence will be substituted and the appeal allowed accordingly.