Attorney-General's Reference No 29 of 2008 (Jon Peter Dixon)

In sentencing an adult who knowingly begins or continues serious sexual activity with an 11-year-old child, the protection of children, including protection from their own willingness to participate, is the pre-eminent consideration. A child's willing involvement and the absence of grooming may materially mitigate sentence, but ordinarily cannot justify a non-custodial sentence.

Save in vanishingly rare cases, custody is inevitable. Its length must nevertheless reflect all the individual circumstances and mitigation, rather than the offence label alone.

The Attorney-General referred as unduly lenient a community order imposed at Manchester Crown Court on Jon Dixon, aged 19, after guilty pleas to meeting a child following sexual grooming, assault by penetration of a child under 13, and attempted rape of a child under 13.

The complainant was aged 11. Dixon initially believed, because of her online profile, that she was 20. He later learned her true age but continued the sexual communications and arranged meetings. The child willingly participated in the relationship and the physical sexual activity. The sentencing judge also had regard to Dixon's youth, good character, immaturity, difficult childhood and guilty pleas.

The central issue was whether those powerful mitigating features could make a community order appropriate for serious sexual activity by an adult who knew that the child was 11.

1. The Attorney-General's reference was allowed. The community order was unduly lenient and was quashed.

2. The court accepted that the offender had not sought out a child in order to groom and corrupt her, that he initially believed she was communicating with an adult, and that the child willingly participated in the relationship and physical sexual activity. Those matters, together with his personal mitigation, were relevant to the length of sentence.

3. They did not remove the central sentencing consideration. The law protects children not only from adults with an unacceptable sexual interest in children, but also from themselves. An 11-year-old child's apparent willingness to engage in sexual activity does not make a non-custodial sentence sufficient to vindicate that protection.

4. Where an adult, even a young and immature adult, knowingly starts or continues serious sexual activity with an 11-year-old child, a non-custodial sentence can be appropriate only in vanishingly rare circumstances. Although sentence must reflect the realities and mitigation of the individual case, custody is ordinarily inevitable. This case was not exceptional.

5. The court substituted concurrent sentences of two years' imprisonment for the assault by penetration and attempted rape offences, and six months' imprisonment for the grooming offence. The sentence was to run from surrender, with seven days spent on remand credited.

• Court of Appeal (Criminal Division) — allowed the Attorney-General's reference under Criminal Justice Act 1988, section 36, holding the community order unduly lenient and substituting concurrent custodial sentences: [2008] EWCA Crim 2026.

• Manchester Crown Court — following guilty pleas, imposed a community order for meeting a child following sexual grooming, assault by penetration of a child under 13, and attempted rape of a child under 13.