Tuesday, 29 March 2016

Adam Johnson: the sentence explained

 On Thursday 24th March, the former Sunderland football player Adam Johnson was sentenced to six years’ imprisonment in relation to three offences: two counts of sexual activity with a child, contrary to s9 of the Sexual Offences Act 2003; and one count of meeting a child following sexual grooming, contrary to s15 of the Sexual Offences Act 2003. Mr Johnson pleaded guilty to the s15 offence and one of the s9 offences on the first day of trial; two further s9 allegations were tried, and he was found guilty of one of those two allegations.

There has been extensive commentary in the print and online media regarding the length of the sentence, and many have suggested that the sentence was excessively lengthy. Others have expressed a belief that the sentence was overly punitive due to the fact that Mr Johnson is a ‘celebrity’ and the Judge was therefore ‘making an example of him’. In fact, Mr Johnson’s celebrity was in a sense a relevant factor, as will be seen below; but that does not mean that the Judge artificially extended the sentence based on Mr Johnson’s high profile or in order to make a public example of him.

The sentence can be briefly broken down as follows:

1.       S9 offence 1: touching

This was the most serious offence. Due to the nature of the touching, it was a ‘category 1’ offence in the sentencing guidelines, indicating higher harm. Additionally, the Judge listed a variety of factors indicating higher culpability, including the planning involved, the abuse of trust (given Mr Johnson’s privileged position as an admired footballer), a significant disparity in age (the victim was 15 and Mr Johnson 27 at the time of the offence), and the fact that Mr Johnson solicited sexual images of the victim. This meant that the offence fell into ‘category A’ for culpability.

Being a category 1A offence, the starting point for sentencing was five years’ imprisonment, and the range was four to ten years.

The Judge then went on to identify aggravating and mitigating features of the offence. Various aggravating features were identified, including the location and timing of the offence (in a secluded location where they were not likely to be seen) and the fact that Mr Johnson tried to prevent the victim from reporting the offence. More significantly, it was at this point that Mr Johnson’s status as a celebrity and footballer, and the respect and trust that therefore accrued to him, became relevant. The Judge found that the consequences of the offending were exacerbated by Mr Johnson’s ‘status, the widespread knowledge of the case in the area in which M lives and the apparent knowledge of M’s identity which has led to her receiving abuse and insults, from her peers and from members of the public’. He further informed Mr Johnson that ‘your standing and your offending are the only reason that this child has suffered abuse far beyond that which might be expected in other cases of a similar nature. That is an unusual and particular feature of the harm suffered by M and her life has been adversely affected in the past year and such effect is ongoing.’ He went on to address the apparent mitigating feature of Mr Johnson’s previous good character and lack of previous convictions, saying ‘Insofar as mitigating factors are concerned, it is right that you have no previous convictions and are of good character, but this is a case which the Guidelines anticipated, where your very character has been used to facilitate the offence and is not, therefore a mitigating but an aggravating factor... it was because you were at that time a respected Sunderland football player that you were able to commit these offences.’

This, then, is the crux of the point: the Judge did not artificially or deliberately inflate the sentence in order to ‘over-punish’ Mr Johnson due to his fame, or to make an example of him; however, Mr Johnson’s fame and status were features of the case, which both allowed Mr Johnson to offend in the first place and then aggravated the consequences of the offending, and so they could not be overlooked in the sentencing exercise. These features therefore were considered by the Judge to be aggravating.

All of this taken together meant that the Judge sentenced Mr Johnson to five years’ imprisonment for this offence. If anything, this might seem a slightly light sentence – five years’ imprisonment is the starting point for the offence, but the Judge identified a large number of aggravating factors, and few effective mitigating factors, which would seem to indicate that a slightly higher sentence would be appropriate. However, the Judge may have had totality in mind when sentencing, as he also imposed a consecutive sentence in relation to the s15 offence – see below for a discussion of this.

2.       S9 Offence 2: kissing

This offence was much less serious than the others, and Mr Johnson pleaded guilty to it on the first day of trial – it was essentially an offence of kissing the victim. Due to this it was considered a category 3 offence, i.e. one of lower harm. However, it remained a category A offence in relation to culpability as the same factors raising culpability in relation to the other s9 offence also applied to this s9 offence.

As a category 3A offence it therefore had a starting point of 26 weeks’ imprisonment, with a range from a high level community order to three years’ imprisonment. The Judge took the starting point of 26 weeks’ imprisonment and then reduced it to take into account Mr Johnson’s guilty plea, giving a sentence of four months’ imprisonment, to be served concurrently with the sentence for the other s9 offence, as they took place on the same occasion.

3.       S15 Offence: meeting a child after sexual grooming

The final offence was one of meeting a child after sexual grooming. The Judge considered that the offence was not one of raised harm, but did involve raised culpability, and therefore it was a category 2 offence. Category 2 offences have a starting point of two years, with a range of one to four years. The Judge had regard to the principle of totality and therefore reduced the sentence from the starting point of two years to a sentence of 15 months’ imprisonment, which was then further reduced to take account of Mr Johnson’s guilty plea to give a final sentence of 12 months’ imprisonment, to be served consecutively to the sentences imposed for the two s9 offences.

The decision to make the s15 sentence consecutive to the s9 sentences has caused some controversy, and some have suggested that it is ‘double counting’; that is, sentencing twice for the same behaviour. The Judge was clearly aware of the possibility of this being raised as an issue at appeal, and therefore set out to stop it before it could be raised, as follows: ‘I acknowledge that offences of Sexual Activity with a Child will often involve an element of grooming but where, as here that grooming took place over a protracted period of time both before and after the commission of the offences where there was physical contact with the child, I consider it right that a separate and consecutive sentence is required to indicate the gravity of the offence of grooming.’

Conclusion


As many have noted, six years’ imprisonment is well within the limits of the sentencing guidelines, and so it is submitted that the Court of Appeal is unlikely to find the sentence to be manifestly excessive. However, Mr Johnson’s legal team have indicated their intention to appeal his conviction, and it is probable that any such appeal would also involve consideration of the length of his sentence; so we are unlikely to have heard the last of this case.

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