Naish, R. v

MR JUSTICE JACK: The appellant, Kevin Naish, is 33 years old. On 30th July 2009 he pleaded guilty before magistrates to an offence of burglary and was committed to the Crown Court for sentence. On 3rd August 2009 he pleaded guilty in the Crown Court at Reading to one count of sexual activity with a child contrary to section 9 of the Sexual Offences Act 2003. On 4th September he was sentenced to four years on the section 9 offence and to six months consecutive on the burglary, a total of four and a half years. He appeals against sentence by leave of the single judge. The appeal relates only to the four year sentence on the section 9 offence.

The facts of that offence are as follows. The 14-year-old victim, who we will refer to as "A" (and who should not be identified), was a friend of the appellant's daughter. The two girls used to visit each other in their homes on a regular basis. The appellant ran what might be described as a liberal regime at his home. He permitted the girls to smoke cannabis and drink alcohol.

In April of 2008 he took them on a camping trip to celebrate his daughter's 13th birthday. They all slept in one tent together and the two girls were given alcohol by the appellant. In August of 2008 the appellant invited A to go on another trip. His daughter was going on it too. It was organised by the social services agency. He indicated to A's mother that he would sign the consent form for A to go on the trip. In the event she was turned away from the coach and was not permitted to go on the trip. She then went back to the appellant's house. Her mother realised that when she telephoned the appellant to see if the girls had got off all right. Her mother told A to return immediately. She also warned her daughter that the appellant was drawing inappropriate boundaries. She warned her daughter not to go round to the appellant's again.

On 19th September A told her mother that she was visiting another friend. She went round to the appellant's house. There she met the appellant and his daughter and another girl. The appellant gave them some wine and some cannabis. Later that evening A was lying on the sofa with him. He had his arm around her. At a time when everybody else in the flat had gone to sleep, they went upstairs to another flat belonging to a friend of the appellant, where they talked and watched television. Later they kissed and he put his finger into her vagina and told her that he wanted to have sex with her. She said that she too wanted to have sex with him. She was later to say that she was both scared and excited. She said that while she wanted to have sex with him, she knew it was wrong as he was the father of her friend. At her request they went back downstairs to his flat, where again he put his finger into her before asking her to go into the bathroom with him. She agreed to do so, but was told by him she did not have to if she did not want to. He led her into the bathroom and began to kiss her. He pulled down her trousers and her underwear and then took off his own trousers. He then guided her above him and penetrated her with his penis without wearing a condom. After a while he withdrew and ejaculated onto a towel and partly onto her clothing.

She came home the following lunchtime and immediately had a bath, which her mother found unusual. A later spoke to a friend and was clearly in distress. The friend advised her to speak to a counsellor whom A was going to see at school the following day. A told the counsellor what had happened. It was reported to social services and then to A's parents. A's father went round to confront the appellant, who denied everything.

On 23rd October the appellant was arrested. In interview, he denied any sexual activity. DNA evidence was obtained and showed that the appellant's semen was on A's clothing.

While on bail for this offence the appellant went to Devon. While he was there he broke into a club and stole a glass containing £213 in cash. He was subsequently arrested and admitted that offence. That gave rise to the charge of burglary.

The appellant was born on 17th June 1976 and so, as we have said, he was 33 when the offences occurred. He had four previous convictions for burglary and two for attempted burglary. He had no convictions for sexual offences.

In passing sentence, the judge said that the appellant would receive credit for his plea, which meant the victim had not had to re-live the experience. However, he had only changed his mind about admitting it when faced with the DNA evidence. Adopting the guideline, the starting point appeared to be four years. However, there were a number of aggravating features: namely, encouraging the girl to smoke cannabis and consume alcohol; the age difference; his position of trust as she was the friend of his daughter; the fact that her parents trusted him to look after her; and the history of allowing her to behave in a similar way on previous occasions, which was suggestive of grooming. However, giving him credit for his pleas, that brought the sentence back to the four year starting point.

The sentence of four years following a plea suggests that the judge had taken six years as his starting point, if the aggravating features are for the moment ignored. It is submitted to us on behalf of the appellant by Mr Christopher Martin that this was plainly too high. There were here, as the judge said, a number of aggravating features, namely the substantial age difference, that his association with her stemmed from her friendship with his daughter, and so there was some element of breach of trust, and the use of alcohol and cannabis. We are uncertain as to whether it is right to say that there was here an element of grooming for the appellant seems to have behaved, so far as alcohol and cannabis is concerned, in exactly the same way to his own daughter, but clearly on the occasion when sex occurred alcohol and cannabis had played its part. On the other hand, the complainant did wholly consent to what had happened, although it appears that she realised that it was wrong and was uncomfortable with it. In contrast with some of the cases that come before this court, there was but the one occasion.

The guide line on sexual offences provides in respect of section 9, where penile penetration is involved, a starting point of four years, with a range of three to nine years. That is for an offender who is convicted following a trial. A person who pleads guilty at the first opportunity will usually be entitled to a discount of one-third, which reduces the starting point to two years and eight months. It is important to have in mind that section 9 covers a wide range of misconduct, and even in the top category involving penile penetration again there is a wide range of seriousness.

Mr Martin has referred us to a number of cases in this court having features in common with the present case. The sentences have ranged from 18 months to four years following a plea, depending on the facts relating to the parties and the circumstances of the intercourse.

Having considered those authorities, we are of the view that, in the circumstances of this case, a sentence of two years and nine months would be appropriate, taking account of the matters we have set out. In particular, we would emphasise that this was a 33-year-old man who seduced the 14-year-old friend of his daughter. "Seduced" may be an old-fashioned word, but it fits what happened here. The sentence of four years will therefore be reduced to one of two years and nine months. The sentence of six months consecutive on the burglary will stand. 48 days served on remand will continue to count towards sentence. The appeal will be allowed accordingly.