In respect of six cases which were heard together because they raised a similar issue, the Court of Appeal, Criminal Division, considered the correct approach to be taken when sentencing certain offences against children under the Sexual Offences Act 2003 when no sexual activity had taken place, for instance, because: (i) the child had been a fiction; (ii) the defendant had failed to persuade the child to engage in sexual activity; or (iii) he had been thwarted.
 All ER (D) 53 (Apr)
*R v Reed and another
 EWCA Crim 572
Court of Appeal, Criminal Division
Fulford LJ, McGowan and Griffiths JJ
21 April 2021
Sentence – Sexual offences – Correct approach when sentencing for certain sexual offences against children where no actual sexual activity occurred
The defendant, R, was charged with two offences of attempting to cause a fictional 13-year-old child to engage in sexual activity (s 10) (the maximum sentence was 14 years’ imprisonment). He was sentenced to two years’ imprisonment. The Registrar of Criminal Appeals referred R’s application for leave to appeal to the full court.
B was charged with two offences (counts 1 and 2) of attempting to incite a girl under the age of 16 to engage in penetrative sexual activity (s 10). There was an offence of attempting to cause a child to watch a sexual act (s 12) (the maximum sentence for which was ten years’ imprisonment). Finally, there was an offence of attempting to cause a girl under the age of 16 to engage in non-penetrative sexual activity (s 10). B was sentenced to 3 years 6 months’ imprisonment on counts 1 and 2, with concurrent sentences of 7 months’ imprisonment for the other two offences. The Registrar of Criminal Appeals referred his application for leave to appeal to the full court.
In respect of C, the Attorney-General applied to refer the sentence to the present court. C was charged with nine offences against three fictional children. There were three charges (offences 1, 2 and 3) of attempted sexual communication with a child (s 15A) (the maximum sentence of which was 2 years’ imprisonment); three charges (offences 4, 5 and 6) of attempting to cause a child under the age of 16 to watch a sexual act (s 12) (the maximum sentence for which was 10 years’ imprisonment); a single charge (offence 7) of attempting to incite a child under the age of 13 to engage in non-penetrative sexual activity (s 8) (the maximum sentence of which was 14 years’ imprisonment); a charge (offence 8) of making an indecent image of a child (s 1(1) of the Protection Children Act 1978 (PCA 1978) (the maximum sentence for which was 10 years’ imprisonment); and a charge (offence 9) attempting to incite a child under the age of 16 to engage in sexual activity (s 10) (which had a maximum sentence of 14 years’ imprisonment). He was sentenced to terms of imprisonment which were suspended for 2 years, the terms being 4 months on charges 1, 2 and 3; 8 months on charges 4, 5 and 6; 12 months on charges 7 and 9; and 1 month on charge 8. The sentences were ordered to run concurrently with the sentence of 12 months’ imprisonment suspended for 2 years on charge 7. A rehabilitation activity requirement of 35 days was also imposed.
In the case of V, the Attorney-General applied to refer the sentence to the present court. V was charged with arranging penetrative sexual activity with a fictional 12-year-old child (s 14). He was sentenced to a two-year community order.
In respect of M, the Attorney-General applied to refer the sentence to the present court. M was charged with attempting to pay for the sexual services of a fictional 11-year-old child (G) (s 47) (the maximum sentence was life imprisonment), viz. penetrative sexual activity with a child under 13. He was sentenced to 3 years’ imprisonment.
K was charged with sexual communication with a real 15-year-old child (G) (s 15A) (the maximum sentence was 2 years’ imprisonment), and two charges of causing a child to engage in sexual activity (section 10) (the maximum sentence was 14 years’ imprisonment). He was sentenced to a 3-year community order. The Attorney-General applied to refer the sentence to the present court.
(1) Whether the reasoning in R v Privett and others All ER (D) 187 (Apr) (which gave guidance on the approach to sentencing offences under s 14: arranging or facilitating the commission of a child sexual offence) should apply more widely to other offences under SOA 2003 when the defendant had committed a sexual offence with, or in respect of, a person who was, or who the defendant believed to be, a child and no sexual activity had occurred.
It was contended that the court in R v Manning All ER (D) 44 (May) had adopted an approach that was potentially inconsistent with the guidance in Privett.
The court in Privett decided that when sentencing an offender in respect of an offence contrary to s 14 when there was no real child, the judge should, first, identify the category of harm on the basis of the sexual activity that the defendant intended and, secondly, adjust the sentence in order to ensure that that was commensurate with, or proportionate to, the applicable starting point and range if no sexual activity had occurred. The court determined that it was necessary to keep in mind the terms of the offence contrary to s 14 (viz. intentionally arranging or facilitating activity that would constitute a child sexual offence, intending that that would happen). It was a preparatory offence and was completed when the arrangements for the offence were made or the intended offence had been facilitated and it was not, therefore, dependent on the completed offence happening or even being possible. In those circumstances, the absence of an actual victim did not, therefore, reduce culpability (see  of the judgment).
The court accepted that, as a general proposition, the harm in a case would usually be greater when there was a real victim than when the victim was fictional. Nonetheless, s 63 of the Sentencing Act 2020 (SA 2003) (formerly s 143(1) of the Criminal Justice Act 2003 (CJA 2003) required the court to consider the intended harm. For a s 14 offence, the position under the guideline was clear: the judge should, first, identify the category of harm on the basis of the sexual activity that the defendant intended (‘the level of harm should be determined by reference to the type of activity arranged or facilitated’); and, second, adjust the sentence in order to ensure it was commensurate with, or proportionate to, the applicable starting point and range if no sexual activity had occurred (including because the victim was fictional) (see  of the judgment).
No decision of the Court of Appeal, Criminal Division, since Privett had sought to depart from the principles it had established. In Attorney General’s Reference; R v Manning  EWCA Crim 592, the court had been dealing with notably different circumstances, namely four offences of engaging in sexual activity with a real 15-year-old girl (V) contrary to s 9(1), and one offence of causing or inciting V to engage in sexual activity, contrary to s 10(1). It followed that the facts were far removed from Privett where the defendants arranged to commit s 9 offences against a fictitious child (see  of the judgment).
The cases of Attorney General’s Reference No 94 of 2014; R v Baker (John)  EWCA Crim 2752 and R v Cook All ER (D) 207 (Mar) had indicated that, for the ss 9 and 10 offences, or their inchoate forms, where no sexual activity had taken place - either because the child was fictional or because the defendant had failed to persuade the child to engage in sexual activity or because the defendant’s attempt to engage in sexual activity with the child was thwarted - harm would be within category 3 irrespective of the defendant’s intentions (see ,  of the judgment).
The consequence of the decision in Baker was that wholly irrespective of the gravity of the sexual activity the defendant sought to persuade the child to engage in, whether the child was fictional or real, the starting point would always be the same. The decisions in Baker and Cook had been made per incuriam, along with those that had followed (Manning and Russell  EWCA Crim 956) which had simply applied Baker and Cook. SA 2020 s 63 lay at the centre of the overarching issue of principle as regards sentencing. It had not been referred to in any of those cases (see ,  of the judgment).
If the seriousness of an offence was to be judged by reference, not just to the harm caused, but to the harm intended, then when a defendant encourages a child to engage in sexual activity, but without that activity taking place, or attempted to engage in sexual activity with a child, the effect of SA 2020 s 63 was that the harm should be assessed by reference to the defendant’s state of mind and intentions. The decisions in Baker and Cook were unsustainable when considered in light of that clear statutory requirement, because they relegated seriousness to the lowest category of harm, wholly regardless of the harm the accused had intended to cause, in clear contravention of that statutory provision (see  of the judgment).
Furthermore, the doctrine of stare decisis in the Court of Appeal (Criminal Division) had recently been given fresh expression by a five-judge court, presided over by the Lord Chief Justice, in R v Barton and another  EWCA Crim 575 (at ) (see  of the judgment).
The difference in approach as between Privett and Baker, which depended simply on the particular offence with which the accused had been charged, was unsustainable; it would mean that the assessment of harm would be markedly different in cases of grave sexual offending involving young people simply because of the particular section under which the perpetrator was charged. It was an area in which injustice would undoubtedly result if the law was not able to develop. The present decision would end the rigid distinction between those cases where particular sexual activity had taken place and those cases where the defendant, for instance, had done everything he had been able to to bring that sexual activity about, but for reasons beyond his control it had not materialised. The sentencing judge should make an appropriate downward adjustment to recognise the fact that no sexual activity had occurred, as demonstrated by the court in Privett (at ). Furthermore, that approach should apply to all of the offences set out in paragraph  (of the judgment) when the defendant had attempted to commit the offences or had incited a child to engage in certain activity, but the activity had not taken place. The harm should always be assessed in the first instance by reference to his or her intentions, followed by a downward movement from the starting point to reflect the fact that the sexual act had not occurred, either because there had been no real child or for any other reason (see  of the judgment).
The extent of downward adjustment would depend on the facts of the case. Where an offender was only prevented from carrying out the offence at a late stage, or when the child victim did not exist and otherwise the offender would have carried out the offence, a small reduction within the category range would usually be appropriate. Where relevant, no additional reduction should be made for the fact that the offending was an attempt (see  of the judgment).
However, when an offender voluntarily desisted at an early stage, and particularly if the offending had been short-lived, a larger reduction was likely to be appropriate, potentially going outside the category range (see  of the judgment).
As indicated in Privett at , it might eventuate that a more severe sentence was imposed in a case where very serious sexual activity was intended, but did not take place than in a case where relatively less serious sexual activity did take place (see  of the judgment).
R v Privett and others  EWCA Crim 557 applied; Attorney General’s Reference; R v Manning (2020)  EWCA Crim 592 distinguished; Attorney General’s Reference No 94 of 2014; R v Baker (John)  EWCA Crim 2752 considered; R v Cook (Jacob) (2018)  EWCA Crim 530 considered; R v Barton and another  EWCA Crim 575 considered; R v Russell  EWCA Crim 956 considered.
(2) The court considered the individual cases, starting with R’s application for leave to appeal against sentence.
Of the offenders currently before the court, only one of them (V) had been convicted of a s 14 offence, by arranging to commit a sexual offence against a fictitious child. The others had, in the main, been convicted either of attempting to incite a fictitious child to engage in sexual activity (R, B and C), or of inciting an actual child to engage in sexual activity when no sexual activity took place (K). M had been convicted of attempting to sexually exploit a fictitious child by paying to engage in sexual services with her. Section 14 offences presently tended to arose - although by no means always - when the defendant had communicated with a fictional child. In contrast, many of the other offences described frequently occurred when the accused had made contact with a real child and either engaged in sexual activity with them or causes them to engage in sexual activity with themselves, or encouraged them to do so. As the cases presently before the court demonstrated, however, they could also involve fictional children, when the offences would be charged as an attempt (see  of the judgment).
Concerning R, the main issue raised was whether Privett should be followed for offences under ss 9 and 10. R’s application against sentence involved the argument that, for ss 9 and 10 offences, the approach in Manning and Russell should be followed instead of the approach in Privett which addressed ss 14 and 15 offences, with the result that the present offending should have come within category 3 (other sexual activity) instead of category 1, along with an appropriate downward adjustment. R also appealed against the judge’s decision not to suspend the sentence (see ,  of the judgment).
The judge had been correct to apply Privett. He had, therefore, been right to place the offending in category 1 and then to apply a downward adjustment. The reduction of two years to reflect the lack of harm and the fact that the child was fictional had been notably generous, albeit R appeared to have broken off the discussions some significant time before his arrest. The sentence of two years was, therefore, neither wrong in principle nor manifestly excessive, given
that, particularly there were two offences (see  of the judgment).
As to suspension, the judge had been entitled not to suspend the sentence on the basis that appropriate punishment could only be achieved by immediate custody, in line with the Sentencing Council’s Guideline on the Imposition of Community and Custodial Sentences. It was not at all surprising that the judge had not felt able to suspend the sentence for an offence of the present nature (see  below). An immediate custodial sentence was to be expected, even though the term did not exceed two years. The application was refused (see  of the judgment).
(3) Whether B’s application for leave to appeal against sentence should be allowed. The main issue raised was whether the judge had correctly followed Privett.
Dealing with the sentence imposed following the approach in Privett, a term of six years as the sentence on count 1 before a reduction to reflect the absence of a real child for one offence could be described as high. Set against that, given that B had not desisted (instead, he had travelled to meet with the adult decoy in a retail park at a time when he had been hoping to meet with C), a discount of two years because the child had been a fiction had been markedly generous. Furthermore, there were four offences, and it was necessary to take into account the length of time over which they were committed (two months), resulting in the attempted meeting. The offending had involved a request to keep the planned activity a secret. Taking account of the persistence of the activity, it was unarguable that 4 years’ imprisonment for the totality of this criminality was manifestly excessive and that the term of 42 months imposed after a guilty plea was unappealable. Accordingly, the application would be refused (see  of the judgment).
(4) Concerning C, whether the Attorney General should be granted leave to refer the sentence to the court, and whether the sentence was unduly lenient.
Leave was granted to refer the sentence to the present court (see  of the judgment).
The judge had applied the principles in Baker and he had found that, because there had been no real girl, the harm was category 3. He had gone on to find that all the offences were in category 3A, with a starting point of 26 weeks and a range of a community order to 3 years. He had imposed a sentence of 12 months’ imprisonment on charge 9, making the other terms of imprisonment concurrent. In the view of the present court, applying the principle in Privett, that was an unduly lenient sentence. The combination of the relevant features, which were each of real significance, provided wholly exceptional grounds for a reduction in the term to 3 years, which had been the least term consistent with the guidelines that could properly have been imposed for these offences. After credit for his early guilty plea this is properly reduced to a term of 2 years (see - of the judgment).
Turning to the question of suspension, it was inevitable that immediate imprisonment would usually be the appropriate sentence for offences of the present type. There might be exceptional circumstances, however, applying the Guideline on the Imposition of Community and Custodial Sentences, which would permit a court to suspend the term. That was particularly so when there was material which enabled the court to impose a suspended sentence in combination with a rehabilitation requirement, as in the present case. For those reasons, the overall term of 12 months’ imprisonment suspended for 2 years was unduly lenient and should be increased to a term of 2 years. The justice in the case, given the strong mitigation and the clear prospect of rehabilitation, meant that the term of 2 years’ imprisonment should be suspended for a period of 2 years, in combination with the rehabilitation requirement (see  of the judgment).
The court record indicated that a surcharge order of £149 had
been imposed, albeit no order had been made by the court. The sum ordered should have been £140. The imposition of a surcharge order had been mandatory and authority indicated that a surcharge order was part of a sentence under s 50 of the Criminal Appeal Act 1968 (see CAA . There was no reason why that approach should not apply to Attorney General’s references (see  of the judgment).
The application would be granted. The sentences would be quashed, save on offence 8. On offences 1, 2 and 3, the court substituted a sentence of 6 months, suspended for 2 years (concurrent to the sentence on offence 7); on counts 4, 5 and 6 the court substituted a sentence of 12 months, suspended for 2 years (concurrent to the sentence on offence 7); and on offences 7 and 9 a current terms of imprisonment of 2 years would be imposed, suspended for 2 years. The total sentence, therefore, was 2 years’ imprisonment, suspended for 2 years in combination with the Rehabilitation Requirement of 35 days. Further, the court substituted a £140 surcharge order. The sentence on offence 8 was undisturbed (see  of the judgment).
R v Stone (David Edward Damian)  EWCA Crim 723 applied.
(5) Whether leave should be given to refer the sentence in relation to V and whether his sentence was unduly lenient. The central issue raised was that the court had failed to follow Privett.
Leave would be granted (see  of the judgment).
The present offence was a category 1 offence, by reference to the harm intended, which was penetrative sex, including anal sex. The judge had been wrong to place it in category 3, applying the principles discussed above. He had not been best assisted by the inappropriate consensus between counsel at the sentencing hearing as to the approach to be followed. However, he had been correct to place it in category A as regards culpability, because of planning, grooming and the significant disparity in age. For a category 1A case, the starting point was five years’ custody with a range of four to ten years’ custody (see  of the judgment).
As a category 1A offence, bearing in mind the facts of the present case, no starting point below the starting point envisaged in the Guideline of five years’ custody would suffice. The downward adjustment to reflect the fact that there had been no real child should have brought it to no less than four years. Adjustment then needed to be made for the fact that V was of positive good character and the impact of COVID-19 (see  of the judgment).
V had already spent eleven weeks in custody during the onerous circumstances of the COVID-19 pandemic and account was taken of the requirements of the community order, with which, at least in part, he would already have complied. Against that background, and with some significant hesitation given the seriousness of the offending which V had contemplated, a sentence before plea of not less than three years would be appropriate. After appropriate credit for his plea, that was reduced to two years (see  of the judgment).
Usually the appropriate punishment would only be achieved by immediate custody, even when the victim was not a real child. However, on the facts, the application would be allowed. The two-year community order would be quashed and substituted with a two-year sentence of imprisonment suspended for two years, leaving in place the 150-hour unpaid work requirement and the 60-day rehabilitation requirement imposed as conditions of the community order. The surcharge order required amendment. The correct figure was £156 and an order would be made in that sum (see  of the judgment).
(6) Whether leave should be granted in the Attorney General’s reference concerning M. The central issue was whether the judge had correctly followed the approach outlined in Privett.
Leave would be granted (see  of the judgment).
The sentence was unduly lenient. The judge had applied Privett, which had been correct, but a reduction of seven years to three years, from a starting point of ten years, had been far in excess of anything that could be justified by the absence of a real child, even for an offender of previous good character, particularly given that M had not desisted. The involvement of the father was an aggravating factor, only partly mitigated by the fact, unknown to M, that he had not been the real father of a real 11-year-old girl (see  of the judgment).
Applying settled principles, the greatest reduction that could be justified by the absence of a real child from a starting point of ten years, on the facts of this case, was one of three years. The mitigating effect of the previous good character could not outweigh the aggravating feature of involving the fictitious father of the fictitious child. There was no reduction for a guilty plea, given the case was contested. Consequently, the present court would quash the sentence of three years’ imprisonment and substitute a sentence of seven years’ imprisonment (see  of the judgment).
(7) Whether leave should be granted in the Attorney General’s reference concerning K, and whether the sentence was unduly lenient. The central issue was whether the judge should have followed the approach in Privett.
The judge had followed the approach set out in Baker and he had placed the offending in counts 6 and 7 in category 3A as no actual physical sexual activity had occurred. That had provided a starting point of 26 weeks in a range of high-level community order to 3 years’ custody. There was a maximum sentence of 2 years on count 1.
Leave would be given (see  of the judgment).
Taking account all of the factors, along with K’s previous good character, the principles outlined in Manning as regards the impact of the COVID-19 pandemic and the fact that K would have completed some of the unpaid 200 hours work (as well as participation in a sex offender programme and up to 20 days rehabilitation activity), it would be appropriate to reduce the term to a sentence of 2 ½ years’ imprisonment (30 months). The application would be granted. The sentence would be quashed and the court imposed concurrent sentences of 30 months’ imprisonment on counts 6 and 7, and a further concurrent sentence of 12 months’ imprisonment on count 1. The overall sentence, therefore, was 30 months’ imprisonment. The surcharge order required amendment. The correct figure was £170 and an order would be made in that sum (see  of the judgment).
J Maxwell (assigned by the Registrar of Criminal Appeals) for R.
Simon Mintz (assigned by the Registrar of Criminal Appeals) for B.
N Carter (instructed by Nobles Solicitors) for C.
James Oliveira-Agnew (instructed by PCD Solicitors) for V.
Charles Stimpson (instructed by BCL Solicitors) for M.
S Barker (instructed by Goldman Bailey Solicitors) for Carl Anthony K.
Paul Jarvis (instructed by the Attorney General’s Office and the CPS Criminal Appeals Unit) for the Crown.
Carla Dougan-Bacchus Barrister.