Wilson, R v

Sexual-offence legislation protecting children under 16 must be applied so that a child’s apparent encouragement of sexual activity is not mitigation. It increases, rather than reduces, the need for protection and may aggravate the offence. A sentencing court must proceed on the uncontested material before it. A fundamental error by counsel as to a purported mitigating factor does not constrain an appellate court reviewing sentence.

Immediate custody will ordinarily be appropriate for sexual touching of a child. Departure requires circumstances making custody unjust. A substantial age gap, exploitation of vulnerability, sexual communications and a contemporaneous sexual interest in children were aggravating features which required an immediate custodial sentence.

The Attorney General sought leave under section 36 of the Criminal Justice Act 1988 to refer as unduly lenient the sentences imposed at Snaresbrook Crown Court.

The offender, aged 40, pleaded guilty to sexual activity with a 13-year-old child contrary to section 9(1) of the Sexual Offences Act 2003, making indecent photographs of a child, and possessing extreme pornographic images. The Crown Court imposed a total of 12 months’ imprisonment, suspended for two years, with supervision and sex-offender treatment requirements.

The principal issue was whether the sentencing judge had wrongly treated the child’s alleged initiation or encouragement of the sexual activity as mitigation, and whether the resulting suspended sentence was unduly lenient.

1. The court granted leave and held that the sentence was plainly and undoubtedly unduly lenient. It substituted an immediate sentence of two years’ imprisonment for the sexual-activity offence. The four-month sentences for the image offences remained unchanged in length but were to run concurrently. The overall sentence was therefore two years’ imprisonment.

2. The legislative purpose of criminalising sexual relations with persons under 16 is their protection. That purpose was confirmed by R v Tyrrell [1894] 1 QB 710. A child’s alleged encouragement of sexual activity cannot mitigate an adult offender’s sentence. Rather, a child who encourages such conduct needs greater protection, and an offender who takes advantage of that conduct aggravates the offence.

3. The court could sentence on uncontested material which had been before the Crown Court in the interview, pre-sentence report and other documentation. Counsel’s failure to mention a fact did not make it unavailable. Nor could counsel’s fundamental error in presenting the victim’s conduct as mitigation affect the Court of Appeal’s power to determine the correct sentence.

4. Immediate custody ordinarily follows sexual touching of a child, although exceptional circumstances may make another sentence just. None existed here. The offender knew the victim was under 16, recognised and exploited her vulnerability, maintained sexual contact after their first meeting, sent sexually explicit messages, was much older than her, and had recently viewed indecent images of children. His guilty plea was the only mitigating feature, although his later engagement with probation was also taken into account.

• Court of Appeal (Criminal Division): Granted the Attorney General leave under section 36 of the Criminal Justice Act 1988, held the sentence unduly lenient, and substituted two years’ immediate imprisonment: [2013] EWCA Crim 2544.
• Crown Court at Snaresbrook: On 5 August 2013, corrected on 12 August 2013, imposed a total of 12 months’ imprisonment suspended for two years, with supervision and sex-offender treatment requirements.