Attorney General Reference No. 28 of 2010

Where an offender pays and directs adults abroad to sexually abuse vulnerable children for the offender’s real-time sexual gratification, the distance between the offender and the children affords no mitigation. It may aggravate the offending because modern communications facilitate abuse and may be used in the expectation of avoiding detection.

Planning, penetration, repeated conduct, multiple child victims and their particular vulnerability materially increase seriousness. Separate offences against separate children ordinarily require separate punishment. Concurrent sentences may therefore be unduly lenient, although the totality principle remains essential when consecutive terms are imposed.

The Attorney General obtained leave under section 36 of the Criminal Justice Act 1988 to refer as unduly lenient a five-year total sentence imposed in the Crown Court at Mold.

The offender had pleaded guilty to offences of making indecent photographs of children and to offences under section 8 of the Sexual Offences Act 2003. He had downloaded and retained extensive abusive material. On 35 occasions he also paid and instructed adults in the Philippines to procure children aged between two and 17 for live online sexual activity, which he recorded. One count involved penetration of a child aged between two and four.

The central issue was the proper sentencing level, and whether the separate offences should have been ordered to run concurrently.

1. The court granted leave and held that the total sentence of five years’ imprisonment was wholly inadequate. It substituted a total sentence of 12 years’ imprisonment.

2. The sentencing judge had treated the penetrative offence in count 23 as an isolated offence and adopted an erroneous starting point of seven years. The applicable guideline starting point for that single offence was 13 years’ custody, with a range of 11 to 17 years. The court stressed the planned nature of the conduct, penetration, repeated assaults, multiple victims and the exceptional vulnerability of the children.

3. The offender’s absence from the Philippines did not reduce culpability. By paying and giving detailed instructions through modern communications, he procured sexual abuse for his own gratification. The ability to commit the offences remotely and with an expectation of avoiding detection was aggravating.

4. All offences did not properly fall to be served concurrently. Each was a distinct offence against an individual child and merited severe punishment. Totality required adjustment, but did not justify a wholly concurrent structure.

5. The four-year sentence for counts 1 to 19 was left unchanged. Sentences of four years were substituted for counts 20 to 22 and made consecutive to those sentences. An eight-year sentence was substituted for count 23, concurrent with counts 20 to 22. The resulting eight years for counts 20 to 23 was consecutive to the four years for counts 1 to 19. No further deduction for double jeopardy or personal mitigation was warranted.

• Court of Appeal (Criminal Division): On the Attorney General’s reference under section 36 of the Criminal Justice Act 1988, the court varied the sentence to a total of 12 years’ imprisonment: [2010] EWCA Crim 1996.
• Crown Court at Mold: On 2 March 2010, the offender received concurrent sentences totalling five years’ imprisonment after guilty pleas. No citation was stated.