R v Jonathan Cobley

On 22 April 2024, in the Crown Court at Birmingham, the appellant, Jonathan Cobley was convicted following a trial was convicted of one offence, of arranging or facilitating the commission of a child sexual offence, in this case the rape of a girl under 13. On 15 November 2024, he was sentenced by the trial judge to six years' imprisonment. An indefinite Sexual Harm Prevention Order was also imposed. The appellant now renews his application for leave to appeal against conviction following refusal by the single judge on the papers. He appeals against sentence by leave of the single judge.

The facts may be stated shortly. In February 2022 the appellant contacted a website which provided adult sexual services. On that website there was an advertisement for "fresh, fun girls". He contacted the number on the advertisement and spoke to a person who said that her name was Veronica. He discussed with her obtaining a child for sexual services. Unbeknownst to him, "Veronica" was the assumed name of an undercover police officer conducting an operation to detect men who were prepared to arrange for underage sexual services.

During his initial call on 8 February 2022, Veronica said that there were "young teens" available. The appellant rang off. He then quickly called back, using a withheld number. He asked what ages were meant. Veronica informed him that underage girls were available. She asked him to give an age that he wanted. He suggested ages of 12,13 and 14. Veronica said that they had a 13 year old available. He asked for "full service", but then he hung up again.

On 15 February 2022, the appellant called again using a withheld number. He asked for a 12 year old girl and said that he wanted a brunette. Veronica asked him to confirm what activities he wanted the girl to perform. He said, "sex, oral, shower and massage". She confirmed the information, and they agreed a price of £250 for unprotected sex with a 12 year old girl. They arranged a location where they would meet, and he would then have sex with the girl. The appellant called later to say that he was on his way. In fact, he never attended at that location.

The appellant was interviewed by the police. He declined a solicitor. He explained his actions by saying that he was shocked when he was offered underage girls, but he was curious. He said that he thought it was a vigilante group or perhaps an entrapment group. He said to the police that he carried on with the conversation as a "wind up". He told the police that he had no sexual interest in children, and that he had no intention of meeting or paying for the services of an underage girl. He said that he had not withdrawn the £250 cash agreed. Police checks on his n ank account confirmed that there were not transactions of that nature on this bank account.

It was agreed that if the services he had negotiated had taken place with a 12 year old girl, that would have amounted to the offence of rape of a child under 13, contrary to section 5 of the Sexual Offences Act 2003.

To prove the case about arranging or facilitating the offence, the prosecution relied on inferences which they said could be drawn from a range of facts and which they said demonstrated the intent to carry out the planned offence. They relied upon:

The prosecution also applied to adduce evidence of bad character. That evidence related to a conversation on Skype with a woman in the Philippines in which a fee was negotiated to see a 7 year old girl naked, which the prosecution said, showed a sexual interest in girls. The prosecution said that that was relevant as evidence of a propensity to offend – it showed an interest in young girls, which made it more likely that the appellant intended to go through with the plan - and it served to rebut a false impression given at interview that he was not sexually interested in children. The judge allowed that evidence to be adduced before the jury.

The judge rejected a defence submission at the conclusion of the prosecution case that there was no case to answer.

The appellant did not himself give evidence. He called character witnesses on his behalf. He was convicted of count 1, but acquitted of another offence.

The appellant renews his application for leave to appeal against conviction on two grounds. There was initially a third ground, which was to do with the way in which the verdict was taken from the jury, but that third ground is no longer pursued.

Mr Bhatia KC, who appears on behalf of the appellant, submitted, first, that the judge erred in concluding that there was a case to answer. He submitted that there was insufficient evidence for a jury to conclude that the appellant intended to go through with the arrangements and therefore to commit the offence. There were other potential explanations for the contact with "Veronica", including fantasy, which Mr Bhatia submitted was the principal defence that was run at trial. Those other explanations could not be discounted and did not involve any intent to offend. He relies upon R v Hedgcock [2007] EWCA Crim 3486 and R v G [2012] EWCA Crim 1756.

Secondly, Mr Bhatia submits that the judge erred in permitting the evidence of the contact with the woman in the Philippines to be adduced. He submits that it was so prejudicial that it was unfair to adduce it and that it should not have been admitted. It was one incident; there had been no criminal conviction; and it was so damaging to the defence that it was not fair for that to be adduced before the jury.

We do not accept the submissions of Mr Bhatia on the first proposed ground of appeal. The decision in Hedgcock needs to be read in full. The case concerned two men who were messaging each other. They began to discuss raping, and indeed killing, the nieces of one of them. Each masturbated during their discussion. They court considered in "the highly unusual circumstances" that the terms of the internet conversation between the two men showed that they were engaged in fantasy only. As the court put it, "they were making it up as they went along", and they were "encouraging each other into a heightened state of sexual excitement". In those circumstances there needed to be other evidence to show an intention to give effect to the agreement to rape the nieces. There was no other such evidence. Indeed, the 16 factors that had been listed as such evidence were more consistent with the conversation being a fantasy, not a conspiracy. The court concluded, at [26] and [27] as follows:

R v G also involved an internet conversation between two men discussing having sex with a young boy. Again, on the facts of that case the court ruled that a reasonable jury could not on the evidence draw the inference that the accused intended to go through with the plan to have sex with a young boy.

The present case is factually very different. The judge considered the circumstances very carefully in his ruling that there was a case to answer. The jury had the recordings and transcripts of the exchanges between the appellant and "Veronica". The judge was entitled to conclude that a reasonable jury could reject as implausible the suggestion in the recorded interview that the appellant was merely "winding up" someone whom he thought was not genuinely offering sexual services. The judge was entitled to conclude that any suggestion of fantasy could legitimately be discounted by a reasonable jury. As the judge said, this was a negotiation in a commercial context, following discussions between the purported organiser of the provision of sexual services and a customer who was calling in responses to an advertisement on a website advertising sexual services. It was far removed from a conversation between paedophiles who were fantasising. The nature of the conversation was, therefore, indicative itself of an intention to commit the offence. These matters were factors for the jury to assess. We therefore reject ground 1.

In relation to ground 2, the judge was entitled to conclude that the evidence of the conversation with the woman in the Philippines should be admitted. It was material that was relevant to an issue in the case, namely: did the appellant have a sexual interest in young girls? That was relevant to whether or not he had committed the instant offence. It was also admissible to rebut a false impression, namely, the statements in interview that the appellant had no sexual interest in young girls. We do not accept that the alternative course of action, that the reference to having no interest should be excluded from the interviews. That was part of what the appellant said to the police. Indeed, it was subsequently what the character witnesses were effectively called to support. The evidence of the conversation with the woman in the Philippines was admissible to counteract the false impression that the appellant sought to give. These, again, were matters essentially for the jury to assess when they weighed the evidence. We therefore reject ground 2.

In those circumstances, we refuse the renewed application for leave to appeal against conviction.

We turn to the appeal against sentence. The appellant was aged 40 at the time of conviction. He had no previous convictions. The judge had the benefit of a pre-sentence report and a psychiatric report.

The judge considered, first, the position under the guidelines if the offence had been carried out – that is if the appellant had in fact committed rape of a 12 year old child. Under the relevant Sentencing Council Guideline, the starting point for a category 2B offence is ten years' custody, with a range of eight to 13 years. Had it been a category 3B offence – a lesser offence in terms of culpability – the starting point would have been eight years' custody, with a range of six to 11 years.

The judge considered that the full offence of rape of a child under 13 – if committed – would be a category 2 offence in terms of harm. He reached that conclusion on the basis that the offence here was arranging for a girl aged 12, who was being used and exploited, to provide sexual services to grown adults, effectively to act as a prostitute. T e putative victim would be particularly vulnerable by reason of her personal circumstances. The judge considered that there were no other aggravating factors.

There were mitigating circumstances. The appellant had no previous convictions. He was of positive good character in terms of his family and his working life. He had always been in employment. He was the primary carer for his father. The most important mitigating factor was that the appellant did not go through with the offence. Even more importantly, he did not turn up at the pre-arranged location.

In the circumstances, the judge made a substantial downward adjustment from the starting point of ten years and imposed a sentence of six year's imprisonment.

Mr Bhatia submitted that the judge erred in treating a non-existent child as a particularly vulnerable child. He further drew attention to the remarks of the single judge who granted leave, that the age of the notional victim was at the very top of the bracket for that offence and was very nearly into a different offence altogether, had the child been believed to be 13 years old. In addition, Mr Bhatia submitted that the judge made an insufficient reduction to reflect the appellant's personal mitigation. He also submitted that it was wrong to make the Sexual Harm Protection Order indefinite in view of the fact that this was a short episode of criminal conduct; there had been no previous convictions; the appellant was of good character; and he had complied with his bail conditions previously.

We do not accept these submissions. The judge correctly began by identifying the harm that would have been caused if the offence had been carried out. The fact is that the appellant asked for a girl aged 12, having previously indicated an interest in a girl aged 13. He believed that the woman to whom he was talking would arrange for a girl aged 12 to be used for unprotected sex, for which he was prepared to pay an extra amount. In other words, the appellant believed that he was arranging to have sex with a young girl who had been prostituted or exploited by others to provide sexual gratification for adults.

The judge was entitled to regard the offence as one where the appellant was arranging to rape a 12 year old girl who would be particularly vulnerable by reason of her personal circumstances. The starting point for that offence, if committed, would be ten years' imprisonment.

The judge made a substantial reduction for the personal mitigation and for the fact that the appellant had desisted. For whatever reason, the appellant had not gone through with the arrangement. He had not turned up. The judge said that that merited a substantial, not merely a modest, reduction in sentence. The reduction from ten years to six years' imprisonment was a substantial reduction. We do not regard the resulting term of six years' imprisonment as manifestly excessive.

Accordingly, we dismiss the appeal against the sentence of six years' imprisonment.

The judge ordered that the Sexual Harm Prevention Order would remain in force until further order. Despite the persuasive way in which Mr Bhatia advanced the arguments to the contrary, given the circumstances of this case and what the appellant was seeking to arrange, we do not consider that the judge erred in making the order in the terms that he did.

In all the circumstances, therefore, we dismiss the appeal against sentence. And, as we have said, we refuse the renewed application for leave to appeal against conviction.