Frew, R v

Sentencing guidelines for sexual activity with a child require a flexible, individual assessment. The victim’s age, including proximity to the age at which the conduct would cease to be criminal, is relevant to gravity. Serious consequences for the victim may aggravate the offence, but the guideline ranges are not rigid.

A sexual offences prevention order under section 104 of the Sexual Offences Act 2003 requires a proper evidential foundation that it is necessary to protect the public from serious sexual harm. A single consensual offence, without a demonstrated future risk, does not establish that necessity. The court must assess both the statutory criterion and each proposed prohibition.

The appellant pleaded guilty in the Crown Court at Leeds to sexual activity with a child. He was 28 and knew that the complainant was 15½. The single act of consensual intercourse resulted in a pregnancy and a late abortion. He received two years’ imprisonment and an indefinite sexual offences prevention order.

He appealed against sentence and the order. The Court of Appeal considered whether the custodial term was manifestly excessive, whether the statutory threshold for the prevention order was met, and whether a mandatory disqualification from working with children should have been imposed.

1. Appeal allowed. The custodial sentence was reduced from two years to 18 months. Immediate custody remained necessary. The substantial age difference and the traumatic consequences of the pregnancy and late abortion made the offence too serious for a non-custodial sentence.
2. The court nevertheless held that two years was manifestly excessive. The Sexual Offences Definitive Guideline gave a starting point and range, but expressly required flexibility and variability according to the circumstances. The complainant’s age was material to gravity: had the events occurred five months later, no offence would have been committed. That feature had to be weighed alongside the serious consequences for the complainant.
3. The court quashed the sexual offences prevention order made under section 104 of the Sexual Offences Act 2003. The statutory question was whether an order was necessary to protect the public, or particular members of it, from serious sexual harm by the defendant. A single consensual offence involving a 15½-year-old did not provide the necessary foundation for a finding of future risk. The consequences of that offence did not themselves make future serious sexual offending more likely.
4. The case illustrated the need to examine both the statutory threshold and each proposed restriction carefully. The breadth of the prohibitions was significant, particularly because breach could carry up to five years’ imprisonment.
5. The sentencing judge had not addressed the mandatory requirement in section 28 of the Criminal Justice Act and Court Service Act 2000. A disqualification from working with children should have been made. The Court of Appeal imposed that order.

• Court of Appeal (Criminal Division): Allowed the appeal, reduced the prison sentence, quashed the sexual offences prevention order, and imposed a disqualification from working with children.
• Crown Court at Leeds: On 4 February 2008 the appellant pleaded guilty to sexual activity with a child. On 25 February 2008 he was sentenced to two years’ imprisonment and made subject to an indefinite sexual offences prevention order.