Cook, R. v

For an offence of attempting to cause or incite a child to engage in sexual activity, a case involving incitement rather than causing, with no physical contact or communication with a real child, falls within Category 3A of the applicable guideline. It should not be placed in Category 1A merely because the activity incited was penetrative.

Custody may nevertheless be justified within Category 3A where the offending is persistent, sexually explicit, directed at a person believed to be substantially under age, and accompanied by relevant image offences or other aggravating features.

The appellant pleaded guilty at Lincoln Crown Court to attempting to cause or incite a child to engage in sexual activity, making indecent photographs of a child, and possessing an extreme pornographic image. He had engaged online with an undercover police officer posing as a 13-year-old girl and progressively encouraged sexual activity, including intercourse.

The judge treated the principal offence under section 10 of the Sexual Offences Act 2003 as Category 1A and imposed three years’ imprisonment. The appellant appealed against sentence, contending that the correct guideline category was Category 3A because there had been no contact or communication with a real child.

1. Appeal allowed. The Court substituted a sentence of 14 months’ imprisonment on count 1 for the three-year sentence imposed below. The remaining concurrent sentences were unaffected. The substitution resulted in the appellant’s immediate release.

2. The sentencing judge had miscategorised the offence. The Court applied the approach established by R v Gustafsson [2017] EWCA Crim. 1078, R v Buchanan [2015] 2 Cr.App.R (S) 13, Attorney General's Reference No 94 of 2014 (Baker) [2014] EWCA Crim. 2752, and Attorney General's Reference No 94 of 2015 [2015] EWCA Crim. 2384. An offence under section 10 of the Sexual Offences Act 2003 involving incitement, rather than causing sexual activity, where there is neither physical contact nor communication with a real child, belongs in Category 3A. The fact that the sexual activity incited was penetrative did not justify Category 1A.

3. The custody threshold was nevertheless crossed. The appellant persisted over a substantial period, sought to incite full sexual intercourse with a girl whom he believed to be well under age, and was substantially older than his intended victim. The separate offences involving indecent images of children and extreme pornography were further aggravating features.

4. The appropriate pre-plea sentence was 21 months’ imprisonment. A full one-third reduction for the early guilty plea produced a sentence of 14 months.

• Court of Appeal (Criminal Division): allowed the appeal against sentence and substituted 14 months’ imprisonment on count 1: [2018] EWCA Crim 530.
• Lincoln Crown Court: on 30 March 2017, following early guilty pleas, imposed three years’ imprisonment on count 1 and concurrent shorter sentences on the remaining counts.