Hartfield, R. v

When sentencing an attempt involving an online decoy posing as a child, the absence of an actual child victim is not the sole measure of harm. It is nevertheless a material feature. Where no child was groomed, placed at risk, or capable of being harmed, the sentence must reflect a substantial reduction from that appropriate for the completed offence.

On an Attorney General reference, a sentence is not unduly lenient merely because aggravating features could have supported a higher sentence. The court will not interfere where the judge selected an appropriate starting point, gave proper credit for a guilty plea, and made a discretionary decision to suspend the custodial term without error of principle.

The offender pleaded guilty at Lewes Crown Court to attempting to cause or incite a child to engage in sexual activity and attempting to meet a child following sexual grooming. He believed that an online profile, created by a member of a private group seeking to expose paedophiles, belonged to a 14-year-old girl. The profile did not represent a real child.

The sentencing judge imposed concurrent terms of 18 months’ imprisonment, suspended for 24 months, with rehabilitation and sex-offender treatment requirements. The Attorney General sought leave under Criminal Justice Act 1988, section 36, to refer the sentence as unduly lenient. The central issue was whether the judge had undervalued the intended harm and aggravating features of the attempted offences.

1. The court refused leave to refer the sentence. The concurrent suspended sentences of 18 months’ imprisonment were proper and were not unduly lenient.

2. The offences were serious and justified imprisonment. The incitement involved vaginal penetration with an object, there had been planning, and the offender had sent images of his erect penis. Those features could have placed culpability towards the upper end of Category 3 of the applicable sentencing guidelines.

3. However, the offences were attempts involving a fictitious child created by a private individual. The court accepted, consistently with Stillwell [2016] EWCA Crim. 1375, that absence of actual harm is not the sole criterion for assessing harm. It nevertheless held that the absence of a real child was highly material.

4. The court followed the reasoning in Copley [2016] EWCA Crim. 894. Although culpability could be high in an attempt, harm was necessarily restricted where no child existed, no child had been groomed or put at risk, and no harm could have occurred. That feature required a substantial discount from the sentence appropriate for the completed offences.

5. The sentencing judge had taken a starting point of 27 months, at the upper end of the Category 3 range, then gave full and appropriate credit for the guilty pleas. The decision to suspend the resulting 18-month terms was a discretionary judgment. There was no proper basis to criticise it.

• Court of Appeal (Criminal Division): refused the Attorney General leave under section 36 of the Criminal Justice Act 1988 to refer the sentence as unduly lenient.
• Crown Court at Lewes: on 23 March 2017 imposed concurrent 18-month custodial sentences, suspended for 24 months, following guilty pleas.