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Sentencing Sexual Offenders Who Do Not Carry Out What They Intended to Do

Thu 20th May 2021

A number of years ago, the writer advised that a sentence imposed, should be referred to the Court of Appeal by the Attorney General as being ‘unduly lenient’.

It was a case where the Defendant was snared by ‘paedophile hunters’, but the evidence disclosed that he (a) thought he was conversing with a 12-year-old female child and (b) intended to have full sexual intercourse with that child when they met as he intended that they should.

The case was not taken on by the AG on the basis of the decision of the Court of Appeal in another Reference: Baker (No 94 of 2014) [2014] EWCA Crim 2752, where the Offender incited penetrative sexual conduct but that it did not take place.

The Court of Appeal considered that the Offender’s behaviour amounted to “other sexual activity” within the meaning of the Guideline, making it a category 3 offence.

In Reed and Other [2021] EWCA Crim 572, each of the six separate defendants were charged with inciting, causing or attempting sexual offences against children, contrary to sections 5–13, 15, 15A and 47–50 of the Sexual Offences Act 2003.

In each case, no actual sexual activity took place either because the child was a fiction, the child was not persuaded to engage in sexual activity, the defendant was stopped from carrying out the offence or he voluntarily desisted.

In the first two cases and the fifth case, the judge passing sentence had assessed the seriousness of the offending by reference to the intended harm of the defendant’s actions and then made a downwards adjustment to reflect the fact that no sexual activity had in fact occurred.

In the third to fourth and the sixth cases, the sentencing judge had assessed the seriousness of the offending by reference to the fact that no sexual activity had occurred rather than by reference to the intended harm.

The defendants in the first two cases sought to appeal against sentence, contending that the approach to assessing seriousness adopted by the judge had led to the imposition of sentences which were manifestly excessive.

In the third to sixth cases, the Attorney General sought leave to refer the sentences to the Court of Appeal, contending that the sentencing courts had failed properly to assess the seriousness of the offending by reference to the intended harm of the defendants’ actions which had led to the sentences imposed being unduly lenient.

Thus, the central issue in each appeal/application was the question of the correct approach to assessing the seriousness of the offending in cases of sexual offences against children where for whatever reason, no sexual activity in fact took place.

The Court of Appeal dismissed the appeals against sentence and granted the AG’s applications.

In the course of determining the appropriate sentence for a convicted defendant, section 63 of the Sentencing Act 2020 (formerly section 143 of the Criminal Justice Act 2003) required that the seriousness of the offence be determined by a consideration of the offender’s culpability and any harm which the offence either caused, was intended to cause or could foreseeably have caused.

It therefore followed that where a defendant had encouraged 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 section 63 of the 2020 Act was that harm should be assessed by reference to the defendant’s state of mind and intentions.

The fact that no sexual activity took place because, for example:

  • the child was a fiction,
  • the defendant failed to persuade the child to engage in sexual activity,
  • the defendant was stopped or
  • the defendant voluntarily desisted,

would then be reflected by the sentencing judge making an appropriate downwards adjustment, the extent of which would depend upon the facts of the case.

Where the defendant was only prevented from carrying out the offence at a late stage, or when the child victim did not exist and otherwise the defendant would have carried out the offence, a small reduction within the category range would usually be appropriate, and, where relevant, no additional reduction should be made for the fact that the offending was an attempt.

Conversely, when a defendant voluntarily desisted at an early stage, and particularly if the offending was short-lived, a larger reduction was likely to be appropriate, potentially going outside the category range.

Importantly, the Court held that this approach was to be applied irrespective of the section of the Sexual Offences Act 2003 under which the defendant was charged and notwithstanding the fact that it might lead to a more severe sentence being 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 in fact take place.

The case of Baker was cited but not followed by the Court of Appeal.

Before leaving the case, the Court of Appeal proffered important guidance for those responsible for the drafting of charges/counts in cases of ‘attempts’, stating that it would assist judges and others, not least when it comes to identifying the relevant Sentencing Guideline, if the statement of offence, identified the substantive offence lying behind the attempt.

Although this is likely to be of considerable assistance in any case of attempt, it is particularly valuable in cases of sexual offending because of the large number of crimes defined by the Sexual Offences Act 2003, and the potential confusion or even ambiguity which may follow from a lack of precision (para 85 of the Judgment).

Stephen Wood QC

20th May 2021

Broadway House Chambers

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