Sargent, R v

For child sexual-activity offences, penetration places harm within category 1 under the applicable sentencing guideline. Culpability must then be assessed in context. Grooming and solicited indecent images may support higher culpability, but their weight depends on the age disparity, course of conduct and relative seriousness of the guideline factors. A prolonged course of offending, ejaculation and pregnancy risk can materially aggravate sentence. A sentence which is unduly lenient may nevertheless be left unaltered on an Attorney General’s reference where the sentencing judge conducted the exercise carefully and gave reasoned grounds for a merciful sentence.

The offender pleaded guilty at the Crown Court sitting at Guildford to five offences of sexual activity with a child under 16, contrary to section 9, and one offence of causing or inciting a child to engage in sexual activity, contrary to section 10, of the Sexual Offences Act 2003. The offences formed a prolonged sexual course of conduct involving a 14- and then 15-year-old victim.

The Recorder imposed concurrent terms of two years’ imprisonment, suspended for two years, with unpaid work and rehabilitation requirements. The Solicitor General sought leave under section 36 of the Criminal Justice Act 1988 to refer the sentence as unduly lenient. The central issues were the proper guideline categorisation, the appropriate starting point, and whether any undue leniency should lead to an increase.

Disposition

The court granted leave to refer the sentence. It held that the suspended concurrent sentences were unduly lenient, but declined to increase them.

1. The relevant guideline placed the offending in harm category 1 because it involved vaginal and oral penetration. The real issue was culpability. Grooming and solicited indecent images pointed towards category A, but the court assessed the offending as falling between categories A and B. The two-year non-sexual friendship was relevant, but the age disparity meant that the exchange of intimate images could not simply be discounted as a common practice among young people.

2. The court also considered the comparative gravity of the higher-culpability factors in the guideline. There was no joint offending, threat or blackmail. There were, however, material aggravating features: ejaculation, a consequent risk of pregnancy, the extended period of offending and the number of offences. Previous good character, genuine remorse and the guilty pleas were mitigating, although the pleas were entered only on the day fixed for trial and attracted no more than 10% credit.

3. The absence of serious psychological harm then apparent, and the victim’s resilience, did not remove the seriousness of offending designed to protect children. Such offending may damage a child’s welfare in ways that are not immediately recognisable.

4. A pre-plea sentence of 27 months was too short. The court considered that the appropriate starting point was more than three years and that personal mitigation could not properly reduce it to 27 months. The sentence was therefore unduly lenient.

5. Nevertheless, the Recorder had carefully undertaken the sentencing exercise and had articulated reasons for a merciful sentence. Those reasons were entitled to a measure of respect. The court therefore made no variation to the sentence.

• Court of Appeal (Criminal Division): On the Solicitor General’s reference under section 36 of the Criminal Justice Act 1988, the court held the sentence unduly lenient but did not increase it. [2018] EWCA Crim 2194
• Crown Court at Guildford: On 29 June 2018, the Recorder imposed concurrent terms of two years’ imprisonment, suspended for two years, with unpaid work and rehabilitation requirements.