Ardener, R. v

Sentencing for sexual activity with a child is highly fact-sensitive. Comparisons with sentences in earlier cases may assist, but they do not necessarily establish a guideline.

Where the offending is limited in duration and the offender has substantial personal mitigation, a sentence may be reduced even though there was a breach of trust and sexually motivated communications with a child. A Sexual Offences Prevention Order must also state its restrictions with sufficient precision.

The appellant was convicted at Peterborough Crown Court of two offences of sexual activity with a child contrary to section 8 of the Sexual Offences Act 2003. The offences concerned sexually explicit text messages sent to a 12-year-old girl whom he knew through judo classes.

He received concurrent sentences of four years and three years’ imprisonment. The sentencing judge also made a ten-year Sexual Offences Prevention Order, imposed a lifetime disqualification from working with children, and required notification under Schedule 3 of the Sexual Offences Act 2003.

By leave of the single judge, he appealed against sentence. The central issues were whether the custodial terms were excessive and whether the prevention order was sufficiently precise.

1. Appeal allowed. The court held that the custodial terms were longer than necessary in the circumstances. It took account of all the mitigation, including the appellant’s previous good character and the limited period over which the activity occurred.

2. The court considered R v Hinton Smith [2005] EWCA Crim 2575. That case involved more serious conduct, although the offender had pleaded guilty. Its two-year custodial element did not appear to have been intended as a guideline. More generally, sentencing in such cases presents difficulties because the facts vary greatly and citations of authority will not always assist.

3. The four-year sentence on count 1 was quashed and replaced with two years’ imprisonment. The three-year sentence on count 2 was quashed and replaced with 21 months’ imprisonment, concurrently.

4. The ten-year Sexual Offences Prevention Order was too imprecise and was quashed. It was replaced by a ten-year order preventing, without an order of a judge exercising jurisdiction under the Children Act 1989, communication with a child under 16 in internet chatrooms or by text or telephone, and being alone with any child under 16.

5. The remaining orders stood. Following the reduction of the total sentence, the notification requirement was varied to ten years.

• Court of Appeal (Criminal Division): Allowed the appeal against sentence. It reduced the concurrent custodial terms, quashed and replaced the Sexual Offences Prevention Order, and varied the notification period to ten years.
• Peterborough Crown Court: On 9 February 2006, convicted the appellant of two offences contrary to section 8 of the Sexual Offences Act 2003 and imposed concurrent sentences of four years and three years, together with ancillary orders.