Kavanagh, R. v

When sentencing a sexual offence outside a Sentencing Guidelines Council guideline, the court should, so far as possible, relate it to guideline offences of a similar character. Repeated sexually explicit telephone calls to adults, charged as common-law public nuisance, may be more serious than many voyeurism offences because they invade privacy and can cause fear.

For such offending, a starting range of 15 to 21 months’ imprisonment was appropriate. The court must adjust the sentence for the impact on victims, the number and duration of calls, and their content, while giving proper credit for mitigation.

The appellant pleaded guilty to common-law public nuisance after making hundreds of sexually explicit telephone calls to adult women over an extended period. The calls caused several recipients anxiety and fear. He had no relevant recent offending, expressed remorse, and had pleaded guilty at the magistrates’ court.

At the Crown Court at Southwark, HH Judge Testar imposed two years and six months’ imprisonment and a four-year anti-social behaviour order. The appellant appealed against sentence by leave of the single judge. The central issue was the appropriate sentence for repeated sexually motivated nuisance calls where no directly applicable sentencing guideline governed the common-law offence.

1. The appeal was allowed to the extent of sentence. The sentence of two years and six months’ imprisonment was manifestly too high. It was replaced with 12 months’ imprisonment, with time on remand to count. There was no appeal against the four-year anti-social behaviour order.
2. Although the Sentencing Guidelines Council’s sexual-offences guideline did not cover common-law public nuisance, the court held that a sentencing court should, where an unlisted offence is sexual in nature, seek as far as possible to relate it to analogous guideline offences. Guidelines cannot be expected to cover every offence, but analogous ranges provide a principled sentencing reference point.
3. The court compared the offending with sexual assault and voyeurism guideline categories. Persistent sexually explicit calls were more serious than many voyeurism offences: they involved an invasion of privacy and direct contact capable of putting victims in fear. Where the calls were to adults, the appropriate starting range was 15 to 21 months’ imprisonment.
4. The range required adjustment for the effect on the women, the number of calls, the period of offending and the nature of the questions. The court proceeded only on the established facts: hundreds, rather than thousands, of calls, and no calls to persons under 16. It also gave full credit for the guilty plea, remorse, lack of relevant recent offending and the absence of a serious risk of reoffending. The sustained volume of calls and the fear caused nevertheless justified immediate custody.

• Court of Appeal (Criminal Division): By [2008] EWCA Crim 855, allowed the appeal against sentence and substituted 12 months’ imprisonment.
• Crown Court at Southwark: HH Judge Testar sentenced the appellant to two years and six months’ imprisonment and made a four-year anti-social behaviour order.