Sentencing for Child Sexual Offences in cases of attempt:

In a previous article I considered the inconsistent approach taken to the categorisation of harm when sentencing Defendants in cases where sexual activity against children does not actually take place. That article focused on the judgments in:

• R v Privett [2020] EWCA Crim 557 (‘Privett’)
• R v Manning [2020] EWCA Crim 592 (‘Manning’).

The issue was raised in the recent Court of Appeal case of:

• R v Woolner [2020] EWCA Crim 1245 (‘Woolner’) and the Court endorsed the decision in Privett.

The discrepancy:

Privett held that in cases under section 14 SOA 2003 the correct approach was to:

1. ‘identify the category of harm on the basis of the sexual activity the defendant intended’; and
2.  ‘adjust the sentence in order to ensure it is “commensurate” with, or proportionate to, the applicable starting point and range if no sexual activity had occurred’.

In contrast, in Manning – a case concerned with section 10 of the SOA 2003 – the Court endorsed the position that where no sexual contact actually takes place the level of harm should, ordinarily, be category 3.

Facts of Woolner:

The case came to the court’s consideration under an appeal by the Solicitor General that the sentence was unduly lenient. The Defendant had pleaded guilty to an offence of attempting to arrange or facilitate the commission of a child sex offence, contrary to section 1(1) of the Criminal Attempts Act 1981; to an offence of possessing extreme pornographic images, contrary to section 63 of the Criminal Justice and Immigration Act 2008; and offences of up-skirting, contrary to section 67A(2) of the Sexual Offences Act 2003.

The facts were that the Defendant had contacted an individual on Grindr who had described themselves as a 13 year old – the individual was fictitious and the account was controlled by a police officer. The Defendant asked for sexually explicit photographs, to meet up and messages including sexual content were exchanged. The Defendant was subsequently arrested when he had gone to meet the fictitious individual and upon examination of his phone up-skirting videos were found of schoolgirls.

At sentence, the Crown accepted the case should be categorised as 3A within the Sentencing Guidelines on the basis that the individual was fictitious and a decoy, otherwise the category would have been 1A.

The sentence passed was, overall, 12 months’ immediate custody.

The Decision in Woolner:

On appeal the Crown put forward that in light of the decision in Privett the case should have been categorised as 1A.

The Court of Appeal outlined the reasoning and approach in Privett and endorsed the same. The Court thus held that the starting point should have been category 1A but that ‘a significant reduction’ should have been taken to cater for the absence of any actual sexual activity.

The court expressly disregarded the decision in Manning on this issue and noted that the position in that case had been conceded without ‘any argument’, the case of Privett had not been drawn to the Court’s attention and it did not ‘displace the reasoned conclusion’ in Privett.

Charges by reference to section 9 and 10 SOA 2003:

The Court further disregarded the decision in R v Russell [2020] EWCA Crim (‘Russell’). The Court again disregarded this decision on the basis that there had not been, as in Privett, proper consideration of all the relevant authorities and, most notably, of the decision in Privett itself. Moreover, the Court held that the case was distinguishable as the cases of Privett and Woolner were concerned with a charge by reference to section 14 SOA 2003, whereas Russell was concerned with a charge by reference to sections 9 and 10 of the SOA 2003.

However, the court gave a strong indication that the approach in Privett should apply in cases charged by references to sections 9 and 10, or attempts thereunder. Whilst the court stated that this was a matter which would need to be explored on a different occasion they remarked that Russell was not to be treated as a ‘binding and decisive authority’ in such cases. The Court’s refusal to explore this matter fully and yet give a strong indication in favour of the Privett approach is unhelpful and creates uncertainty. However, given the wholehearted endorsement by the Court of the Privett approach, and its reasoning, it appears that this should be adopted in cases concerning a charge relating to sections 9 and 10 of the SOA 2003.

Current prison conditions:

It should also be noted that the Court of Appeal again highlighted that the current prison conditions are a matter for proper consideration when assessing whether a custodial sentence should be imposed or the length of the same:

“reference can properly be made to the onerous prison conditions currently extant by reason of the Covid-19 pandemic, as has been discussed in a number of cases in this court.”

Nathan Davis

Nathan is a junior tenant who undertakes a common law practice.