R v Danielle Louise Edney

On 1 June 2023 in the Crown Court at Lewes, the applicant pleaded guilty to two counts of attempting to engage in sexual communication with a child (counts 1 and 3) and two counts of attempting to meet a girl under 16 years of age following grooming (counts 2 and 4). On 28 July 2023, at the same court, the applicant was sentenced on count 4 to a 9-year extended sentence, comprising a 4-year custodial element with a 5-year extended licence. There were concurrent determinate sentences of 8 months, 28 months and 11 months on counts 1 to 3 respectively. The usual ancillary orders were made. It is unnecessary to say anything more about them.

In terms of gender identity, the applicant was born a man but is transgender identifying as female. At this hearing she renews her application for an extension of time of 211 days in which to apply for leave to appeal against conviction following refusal by the Single Judge. Her application for an extension of time of 154 days in which to apply for leave to appeal sentence has been referred to the Full Court by the Single Judge.

For the reasons which follow, we refuse the extension of time required for leave to appeal conviction, we grant the necessary extension of time and leave to appeal sentence. Hereafter in this judgment we refer to the applicant as "the appellant."

This case involved individuals who set up fake profiles of children online with a view to protecting children from online groomers. On 7 May 2022, a Facebook account in the appellant's name made contact with a decoy Facebook account in the name of "Charlotte Grey ("CG"). The decoy account was set up by a volunteer of an online child protection team calling itself "Secrets and Lies Confronted"; the profile created was of a 13-year-old girl. CG made the appellant aware of her age in her first message to her.

Count 1 concerned messages exchanged between the appellant and CG between 7 and 14 May 2022. In those messages the appellant told CG that she was a support worker and a CEO of a company. The appellant asked CG if she wanted a McDonalds and told CG that she could stay at her house. She told her to wear black when they met but to bring her school uniform so she could change into it when they were alone. The appellant asked CG for a photograph of her in her underwear and told her to wear no knickers when they met. The appellant told CG that she could trust her as she looked after people. She talked about sex and wearing protection during sex. The appellant agreed with CG that girls of 13 had sex and said that she would give CG a safe word to use if she wanted to stop. The appellant talked about sexual positions, using restraints during sex, having sex without a condom and "pulling out". She told CG that 13 was an okay age to get pregnant and she asked for a photograph of CG's "boobs" saying: "WhatsApp is extremely private." She asked for access to CG's "pussy" and said that she couldn't wait to "shag" her.

On 14 May 2022, the appellant was arrested trying to meet CG (count 2). After arrest the appellant explained to police that she was autistic and had learning difficulties. She was interviewed with an appropriate adult on the same day and answered "No comment" to all questions put to her. The appellant was released under investigation.

Five months later, on 30 November 2022, a Facebook profile in the name of "Ariana" messaged a decoy Facebook profile in the name of "Ellie Shooter” ("ES"). The profile was of a 14-year-old girl and was set up by a child enforcement team called "Predators Exposed Sting Team". The Facebook account was linked to the appellant by a business address and a YouTube video where Ariana was named as "Danielle Edney". Between 30 November and 10 December 2022, the appellant exchanged a number of messages with ES which formed the basis of count 3. In the messages the appellant told ES that she was a bounty hunter who went to police stations to interview criminals. The Facebook profile of Ariana stated that she was a CEO of a company "Sussex Bail Bonds". The appellant also sent ES a picture of herself wearing a "faux police vest". The appellant asked to meet ES and told her that she was beautiful. She told ES that she loved her and asked ES to be her girlfriend. She asked ES for "sexy pictures" and for a picture of her in her school uniform. She asked ES what she would wear when they met and asked her to bring her school uniform with her. The appellant talked about sexual positions, sex without condoms and wearing no knickers when they met.

On 10 September 2022 the appellant was arrested when trying to meet ES (count 4). When searched she was in possession of handcuffs and a self-defence spray.

The appellant was aged 30 at sentence. She had no previous convictions or cautions. The judge had the benefit of a pre-sentence report and a psychiatric report prepared by Dr Lyall, dated 20 March 2023, both of which we have read carefully. The pre-sentence report included details of the appellant's background. She had been in foster care between the ages of 2 and 15 and then had been supported by a Community Learning Disability team in West Sussex throughout her adult life. The appellant told the author of the report that the offences stemmed from her rocky childhood and the impact that being transgender had had on her ability to start and maintain relationships. The appellant acknowledged to the author of the report that she was frustrated and "took a regrettable decision to go down the under 16 path". She told the author of the report that she was more attracted to females because she had been sexually abused at primary school by a man. The author of the report noted that the appellant had been diagnosed with autism in 2007 and that an IQ assessment in 2012 had revealed that her IQ was extremely low in comparison to her peers. She lacked capacity to use the Internet independently and her use of the Internet was meant to be supervised by the staff at her supported living accommodation. The author of the report stated that the offence was motivated by sexual gratification and was reckless and risky. The appellant was aware of the ages and vulnerability of the individuals with whom she was exchanging messages but continued to do so. The author concluded that the appellant continued to pose a risk of harm to children within the community. She was assessed as posing a high risk of reoffending in terms of similar offences, a high risk of committing a serious sexual offence, and a high risk of serious harm towards children.

Dr Lyall's report had been obtained by her solicitors at an early stage of proceedings to assess the appellant's fitness to plead and possible sentencing options. Dr Lyall reported that the appellant had an established diagnosis of a mild to moderate learning disability and an autism spectrum disorder. She suffered with depression and anxiety and was receiving antidepressant medication. An assessment in 2014 had detailed that the appellant struggled to distinguish between fantasy and reality. In terms of gender identity, the appellant reported to Dr Lyall feeling female from a young age, but Dr Lyall stated that her views around gender were complex to understand given the importance that fantasy played for the appellant and the way it appeared to play a central role in her mental health. Dr Lyall speculated whether the appellant's decision to live as a female was a form of psychological escape or perhaps had given the appellant a sense of new beginning. He recommended that this be further explored before a diagnosis of gender dysmorphia was firmly arrived at. Dr Lyall assessed the appellant as fit to plead and to stand trial. His view was that the appellant's use of the laptop would have taken some planning, with the use of the Internet allowing her to play out her fantasies and to interact with others in a different way than she was normally able to. Dr Lyall concluded that the appellant was at a high risk of attempting similar communications in the future and that she would be vulnerable in prison with the risk that she would be exploited and bullied.

In sentencing, the judge observed that offences were very serious, and the appellant presented a very serious danger to teenage girls and women. He acknowledged the appellant's neurodiversity and reduced her culpability as a result. He accepted that the appellant's status as a transgender woman would make life in prison more difficult. The judge stated that counts 2 and 4 raised the appellant's culpability because of the impression she gave as being employed in a professional caring role and her intention of penetrative activity. The judge took into account the appellant's good character but stated that this was limited because of the appellant's commission of counts 3 and 4 whilst under investigation for counts 1 and 2. The judge assessed counts 1 and 3 as category 1B offences in the relevant guidelines and stated the attempts to meet the recipient of the messages raised culpability but not harm. The judge said that he would give a reduction for the fact there was not a real child in any of the counts but stated the reduction would be measured given the persistence of the appellant to arrange a meeting. The judge referred to Dr Lyall's report in his sentencing remarks. He noted that the offences took a degree of planning given that the appellant was not permitted unsupervised access to the Internet yet had secretly saved up money in order to buy a second-hand laptop which has enabled her to circumvent the restrictions. The judge agreed with the author of the pre-sentence report that the offence had been motivated by sexual gratification and that the appellant was sexually attracted to children. The judge also agreed that the appellant posed a significant risk to members of the public of serious harm by reason of the commission of further sexual offences and people most at risk being children.

In passing sentence, the judge took count 4 as the lead offence and aggregated the custodial sentences on the other counts to that count. The judge acknowledged the difficulties the appellant's legal team had had in gaining access to the appellant in prison and said he would give the equivalent credit for a guilty plea entered between PTPH and trial despite it having been entered close to the scheduled date of trial, applying a reduction of 20 per cent.

We deal first with the application for an extension of time and leave to appeal conviction. Although counsel is here to represent the appellant today, the representation order made by the Single Judge only covers the referral to the Full Court on sentence, and accordingly Mr Witcher has not made any representations, whether in writing or orally, in relation to either the extension of time or the grounds of appeal against conviction, though he very helpfully confirmed that the reasons for the long extension of time sought in relation to the appeal against conviction were the same as those advanced in relation to sentence.

We have read and considered the appellant's written grounds, and we invited the appellant to read out the matters that she had prepared to speak to at the hearing. Given the criticisms which the appellant made of her former solicitors and solicitor advocate acting for her at the sentencing hearing, a waiver of privilege was sought and obtained. We have read and considered her previous representatives’ responses to what the appellant has said about the circumstances in which she entered her guilty pleas to the four offences.

The appellant's grounds are, in short, that she was coerced first by paedophile hunters and then by her solicitors into pleading guilty. She says that the evidence against her was false and should not have been allowed as there were no "real" children involved. She argues that she is vulnerable with special needs and that the conviction is unsafe as she did not understand right from wrong, due to her learning difficulties and autism, she criticises the police and the CPS for taking evidence from paedophile hunter groups. She says that the very long delay in submitting her appeal is because she had no assistance from her solicitors and did not know about the appeal process until after she applied to the Criminal Cases Review Commission, all of which took a long time.

In refusing the extension of time and leave to appeal conviction the Single Judge said this:

At the start of this judgment, we granted an extension of time and gave leave to appeal against sentence. As is usual, we have gone on to hear the appeal. Mr Witcher, counsel for the appellant on the sentence appeal, developed his written grounds in oral submissions before us. We are grateful to him for his detailed and thorough submissions. His arguments may be summarised as follows. He points out that the sentence imposed on count 4 was above the starting point for a category 1 offence despite the judge having found the appellant’s offending fell to category 2. Whilst it is acknowledged that there needed to be an uplift to the sentence to reflect totality there was extensive personal mitigation which lowered culpability significantly, in addition to which the appellant was entitled to credit for pleading guilty. The sentence should have fallen below 4 years, and an extended sentence would not then have been open to the court. He submits the judge was not addressed on the Sentencing Council Guidance, "Sentencing Offenders with Mental Disorders, Developmental Disorders or Neurological Impairments"; the judge seemingly approached the issue of dangerousness as step 1 which unfairly led the court adopting a starting point of 4 years as opposed to first identifying the correct determinate sentence. He further submits that the notional sentence before discount, which resulted in the sentence of 4 years, was too high, in that there should have been a substantial downward adjustment from the starting point to reflect the appellant's mental health which was intrinsically linked to, if not the entire catalyst for, the offending.

The prosecution has filed a Respondent's Notice in response which prosecuting counsel, Mr Elliott, has expanded upon on further today. In essence he argues that the judge properly allowed for a reduced culpability and then for all mitigating factors including the appellant's mental health issues and that the sentence which he passed was just and proportionate to the overall offending.

The judge began his explanation of sentence like this:

The correct approach was first to apply the relevant guideline so as to arrive at the appropriate sentence. In this case there were four separate guidelines to be considered:

On the basis of Dr Lyall’s report the judge was also right to find the appellant's autism and her learning difficulties reduced her culpability for these offences. Dr Lyall noted:

Identifying from his remarks the matters which the judge treated as aggravating the attempting to meet offences as distinct from matters indicating high risk to the public in future is not a straightforward exercise. Doing the best we can we have identified the following matters which the judge appears to have treated as aggravating the offending itself: the offending comprised in counts 2 and 4; the fact that the appellant continued to offend after having been arrested and released under investigation following the first set of offences; giving the impression of being a person in authority with a caring role; significant age difference (though reduced because of reduced maturity); soliciting images; carrying of handcuffs. As mitigation, the judge referred to the appellant's mental health issues and to her increased vulnerability in a custodial setting. He noted that the appellant had no previous convictions of any kind although he pointed out that the mitigating effect of this for counts 2 and 4 was limited, given the appellant's arrest for like offending earlier in the year.

The difficulty for us on this appeal is that, although the judge identified potentially relevant considerations in the course of his remarks, it is unclear how these were factored in so as to arrive at a notional sentence after trial of 5 years which, after discount for plea of 20 per cent, resulted in the custodial element of 4 years. We had difficulty in understanding from his remarks how the guidelines were applied so as to arrive at the final sentence.

The Mental Disorders Guideline directs judges to consider whether a defendant's disorder impacts directly upon their culpability for the offences they have committed. If it does, then that is a matter to be taken into account in the assessment of culpability in step 1:

Here the judge concluded, rightly, that the appellant's autism and learning difficulties reduced her culpability for the offending but he did not go on to state the extent of the reduction. Moreover, the judge appears to have treated the difficulties as a mitigating factor rather than as operating to reduce culpability at step 1 of the offence specific guideline.

Whilst the judge was correct to place the offending in counts 2 and 4 into category 2, in accordance with the Mental Disorders Guideline he should then have considered the extent to which culpability was reduced. Doing that now, we are satisfied that culpability would not have been reduced so as to take the offending out of the middle category into a lower one but rather towards the lower end of the range in the middle category. That category has a starting point of 2 years and a range of 1 to 4 years. Had both sets of offences been sentenced separately then the communication offences could not have added to or aggravated the arranging to meet offences for the reason the judge rightly gave, namely that the communication was the grooming element of the arranging to meet offences.

We doubt whether presenting herself as having a caring role in the messaging or the age difference aggravated the arranging to meet offences to any great extent, if at all. Using a false persona is taken into account in the initial placing of the offences into the raised culpability category in the guideline and a significant age difference is largely inherent in this type of offending. So far as the first set of offences are concerned there are the mitigating factors of previous good character, impoverished background and extreme vulnerability in a (male) prison setting. Some measured regard has also to be given to the fact the victims were not real children. Starting with a reduced level of culpability as indicated and balancing out the aggravating and mitigating factors, we cannot see how a sentence of more than 18 months after trial for the first set of offences (counts 1 and 3) could have been justified. Turning to counts 2 and 4, there are the additional weighty aggravating factors of the offences having been committed whilst under investigation and the carrying of handcuffs, moreover the effect of previous good character is reduced as the judge rightly pointed out. The other matters to which we have referred in connection with the first set of offences all remain the same. Starting with a reduced level of culpability and balancing out these factors would, in our view, result in a sentence of no more than 2½ years after trial for the second set of offences. It follows that, if both sentences are made consecutive with no further allowance for totality (as to that we do not see that a further reduction is required given the separation of the two sets of offences) then the total sentence after trial would be no more than 4 years, to which a reduction of 20% must then be applied, resulting in a term of 3 years and 2 months.

A term of this length is less than the period of 4 years required before an extended sentence can be passed thus, while we fully acknowledge all the points which the judge made during the course of his remarks as to the future risk posed by this appellant, the length of the appropriate custodial term, having applied all the relevant Sentencing Council Guidelines, means that an extended sentence is not properly available. Accordingly, we allow the appeal. We quash the extended sentence of 9 years passed on count 4 and replace it with a determinate sentence of 3 years and 2 months. All other sentences and orders will remain the same.