Smith, R. v

For sexual activity in the presence of a child, sentence must reflect the seriousness of the conduct and relevant aggravating features. A breach of trust and persistence, shown by related offending, justified a starting point of 21 months’ imprisonment after a trial in this case. A defendant who changes plea late may receive a limited reduction; here, a one-tenth reduction produced a sentence of 18 months. A sentencing guideline that does not formally apply because of its commencement date may nevertheless assist the court.

The appellant pleaded guilty at Basildon Crown Court to two counts of exposure and one count of engaging in sexual activity in the presence of a child. He had exposed himself to a nine-year-old girl on two occasions and masturbated in the presence of a 12-year-old girl after gaining the trust of their families.

Judge Worsley imposed a total sentence of 32 months’ imprisonment, comprising 32 months on the sexual-activity count and a concurrent 12 months on one exposure count. The appellant appealed, with leave of the Single Judge, on the ground that the sentence was manifestly excessive. The central issue was the proper custodial term for the principal offence, allowing for aggravating features and the appellant’s late guilty plea.

1. Appeal allowed. The total sentence of 32 months’ imprisonment was excessive. The sentence on the count of engaging in sexual activity in the presence of a child was reduced from 32 months to 18 months’ imprisonment.
2. The court treated the Sentencing Guidelines Council’s definitive guideline for sexual offences as helpful, although it did not formally apply to this appellant because the relevant sentencing date preceded its commencement.
3. The principal offence was serious. The appellant had obtained a position of trust with the child’s family, and the other offending demonstrated persistence. Those aggravating features justified a starting point of 21 months’ imprisonment following a trial.
4. The appellant’s guilty plea was late. He was therefore entitled only to the one-tenth reduction allowed by the sentencing judge. Applying that reduction to the 21-month starting point produced the appropriate sentence of 18 months.
5. The concurrent 12-month sentence for exposure and the absence of a separate penalty on the other exposure count were not disturbed. Following the reduction, the appropriate notification period was 10 years.

• Court of Appeal (Criminal Division): Allowed the appeal against sentence and reduced the sentence for engaging in sexual activity in the presence of a child to 18 months’ imprisonment.
• Crown Court at Basildon: On 11 January 2007, Judge Worsley imposed a total sentence of 32 months’ imprisonment after the appellant’s late guilty pleas.