Naish, R. v

For an offence under section 9 of the Sexual Offences Act 2003 involving penile penetration, the applicable sentencing guideline starting point is four years following conviction after trial, within a range of three to nine years. A timely guilty plea will usually attract a one-third reduction. Sentencers must nevertheless assess the particular seriousness of the conduct, since section 9 covers a wide range of misconduct even within the category involving penetration.

Aggravating features may include a substantial age difference, breach of a position of trust, and the supply of alcohol or drugs. The court must also weigh mitigating features, including a single incident, the complainant's willing participation, and the plea. A sentence that fails to reflect that overall assessment is liable to be reduced on appeal.

The appellant, aged 33, pleaded guilty in the Crown Court at Reading to sexual activity with a child contrary to section 9 of the Sexual Offences Act 2003. The complainant was the 14-year-old friend of his daughter. He had supplied alcohol and cannabis before engaging in sexual activity involving penile penetration.

On 4 September 2009, the Crown Court imposed four years' imprisonment for that offence. It also imposed six months' imprisonment consecutively for an unrelated burglary, making four and a half years in total. The appellant appealed, with leave of the single judge, only against the four-year sentence for the section 9 offence. The central issue was the proper sentence when the guideline, aggravating features, the guilty plea, and the particular circumstances of the incident were taken together.

1. Appeal allowed. The four-year sentence for the section 9 offence was reduced to two years and nine months' imprisonment. The consecutive six-month sentence for burglary remained undisturbed, and 48 days spent on remand continued to count towards sentence.

2. The court applied the sentencing guideline for offences under section 9 of the Sexual Offences Act 2003. Where penile penetration is involved, it gives a starting point of four years and a range of three to nine years for an offender convicted after trial. A plea of guilty at the first opportunity will usually justify a one-third reduction, reducing the starting point to two years and eight months.

3. The court stressed that section 9 encompasses a wide range of misconduct. Even the category involving penile penetration covers conduct of materially differing seriousness. The sentencing exercise therefore required an assessment of the individual circumstances rather than a mechanical use of the four-year starting point.

4. The relevant aggravating circumstances were the substantial age difference, the appellant's relationship with the complainant as his daughter's friend, the trust placed in him by her parents, and his supply of alcohol and cannabis. The court was not satisfied that the earlier supply of alcohol and cannabis established grooming, because he had behaved similarly towards his own daughter. It nevertheless held that those substances had played a part on the occasion of the sexual activity.

5. Against those features, the court took account of the complainant's willing participation, although she understood the conduct to be wrong, the fact that there had been only one occasion, and the guilty plea. On the overall assessment, a term of two years and nine months was appropriate.

• Court of Appeal (Criminal Division): allowed the appeal against sentence and substituted two years and nine months' imprisonment for the four-year sentence imposed for the section 9 offence.

• Crown Court at Reading: following the appellant's guilty plea on 3 August 2009, imposed four years' imprisonment on 4 September 2009 for sexual activity with a child contrary to section 9 of the Sexual Offences Act 2003, with six months consecutively for burglary.

• Magistrates' court: on 30 July 2009, the appellant pleaded guilty to burglary and was committed to the Crown Court for sentence.