REGINA v Dunn

Factual and Procedural Background

On 7th May 2014, before His Honour Judge Hammond at Leicester Crown Court, the Appellant was convicted by a jury of seven sexual offences involving three female complainants, all students at a music school run by the Appellant's parents. The complainants, aged mostly 15 at the time of the offences, were identified in the counts as KB (counts 1-3), GR (counts 4-6), and BW (count 7), with anonymity preserved under the Sexual Offences (Amendment) Act 1992. The offences ranged from indecent assault to sexual activity with a child and occurred in various locations including the Appellant's car, his parents' residence, a boat, and during a trip to Germany.

On 30th May 2014, the Appellant was sentenced to a total of eight years' imprisonment with various concurrent and consecutive terms across the counts. Additionally, a Sexual Offences Prevention Order (SOPO) was imposed, restricting unsupervised contact with females under 16. The Appellant appealed against the conviction on count 3 only, and sought leave to appeal against the sentence after initial refusal.

Legal Issues Presented

1. Whether the facts alleged in count 3 were capable of constituting an indecent assault under the Sexual Offences Act 1956.
2. Whether the sentence imposed was justified and proportionate, including the appropriateness of the Sexual Offences Prevention Order.

Arguments of the Parties

Appellant's Arguments

• Count 3 did not allege facts constituting an assault in law because the act involved the complainant masturbating the Appellant, which the Appellant contended could only properly be charged as gross indecency with a child under the Indecency with Children Act 1960.
• The Appellant relied on the precedent set in Fairclough v Whipp, which held that an invitation to touch does not amount to an assault.
• He sought leave to appeal the sentence, arguing the total sentence was excessive and that the SOPO was unnecessary given his lack of reoffending and his commitment to never work with children again.

Crown's Arguments

• Initially suggested that Fairclough v Whipp was wrongly decided but later abandoned this stance.
• Maintained that the distinction between the defendant touching the complainant and vice versa does not undermine the charge of indecent assault.
• Opposed interference with the SOPO, emphasizing the need to protect young girls from sexual predators and relying on the sentencing judge's assessment of the Appellant's risk.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Fairclough v Whipp (1951)	Held that an invitation to another person to touch the invitor cannot amount to an assault on the invitee.	The court affirmed this precedent as settled law, noting that the indictment in count 3 did not allege an assault and that this case fell within the principle established by Fairclough v Whipp.

Court's Reasoning and Analysis

The court examined the legal sufficiency of the allegations in count 3, which charged the Appellant with indecent assault by causing the complainant to masturbate him. The court considered the statutory framework under the Sexual Offences Act 1956 and the Indecency with Children Act 1960. It referenced Fairclough v Whipp, which established that an invitation to touch does not constitute an assault. The court noted that the indictment did not allege any form of threat or use of force, which is necessary for an assault under the law as it stood at the time. The court rejected the Crown's initial contention that Fairclough was wrongly decided, affirming that Parliament's enactment of the Indecency with Children Act 1960 was premised on the correctness of that decision. Consequently, the court held that count 3 did not allege an offence capable of constituting an indecent assault and allowed the appeal against conviction on that count.

Regarding the sentence, the court considered the Appellant's position of trust, the grooming and corruption of vulnerable young girls, and the sentencing judge's application of guidelines. Although the successful appeal reduced the total sentence from eight to seven years, the court determined that an overall sentence of six years was appropriate. The court accordingly reduced the sentence on count 2 and quashed the sentence and conviction on count 3. The court also reviewed the necessity of the SOPO, emphasizing the sentencing judge's findings on risk and the protective purpose of the order, and declined to interfere with it.

Holding and Implications

The court's final decision was as follows:

• The appeal against conviction on count 3 was ALLOWED, quashing the conviction on that count.
• Leave to appeal against sentence was granted, and the sentence appeal was ALLOWED, resulting in a reduction of the total sentence to six years' imprisonment.
• The Sexual Offences Prevention Order was upheld and not interfered with.

The direct effect of this decision is the quashing of the conviction and sentence on count 3 and the reduction of the overall sentence. The court affirmed established legal principles regarding the definition of assault in sexual offences and maintained the protective measures imposed by the SOPO. No new precedent was established beyond the reaffirmation of existing case law.