Price, R v

An adult may cause or incite a child to engage in sexual activity under Sexual Offences Act 2003, section 10, where sexual communications encourage the child to perform the activity, even without an express request or physical presence. Sentencing must reflect the actual conduct rather than mechanically equate it with guideline categories involving direct penetration or sexual contact. A serious abuse of a position of trust towards a child may require immediate custody. The absence of direct sexual contact and of an express request for images remains material to proportionality.

The appellant, a 37-year-old school-bus driver, pleaded guilty at Stafford Crown Court to causing or inciting a 14-year-old passenger to engage in sexual activity contrary to section 10 of the Sexual Offences Act 2003. Over about two months, their text communications became sexual. The child sent sexual photographs, including photographs showing self-penetration, and the appellant sent two photographs of his erect penis.

He did not expressly request the photographs and there was no direct sexual contact. The sentencing judge imposed 16 months’ imprisonment. The appellant appealed against sentence with leave of the single judge. The issue was whether that sentence properly reflected the gravity of the conduct and its substantial, but limited, relationship to guideline categories for direct sexual activity.

1. Appeal allowed. The Court of Appeal substituted a sentence of nine months’ imprisonment for the 16-month sentence.
2. The appellant’s sexual communications with the child fell within section 10 of the Sexual Offences Act 2003. Although an unusual application of the provision, the child’s self-penetrative photographs were a natural consequence of conduct which he had encouraged. The appellant need not have been present when the photographs were taken.
3. Immediate custody was required and suspension was inappropriate. The appellant was a school-bus driver in a position of trust towards a 14-year-old child. He seriously abused that position by encouraging a sexualised relationship instead of acting responsibly to end it.
4. The sentencing guideline ranges for penetration and physical sexual contact described conduct substantially more serious than this offence. The judge’s two-year starting point before credit for the early guilty plea gave insufficient weight to the facts that the appellant had not asked for the photographs and that there had been no direct sexual contact.
5. A nine-month sentence after plea properly reflected both the seriousness of the abuse of trust and the limits of the offending conduct.

• Court of Appeal (Criminal Division): Allowed the appeal against sentence and substituted nine months’ imprisonment: [2008] EWCA Crim 1974.
• Crown Court at Stafford: Following a guilty plea, imposed 16 months’ imprisonment on 16 May 2008.