De-Banks, R. v

A sentencing court must assess aggravating harm by reference to the chronology of the charged offending. Harm occurring before the charged period cannot aggravate those offences merely because it concerns the same child.

Continued sexual communications after a warning, some grooming and retention of sexual images may justify category 3A under the relevant sentencing guideline. Vulnerability and immaturity remain mitigating factors. A necessary sexual harm prevention order should also state its duration without ambiguity.

The appellant pleaded guilty in the Crown Court at Oxford to sexual communication with a child and causing or inciting a child to engage in sexual activity. He received concurrent suspended custodial sentences, producing an overall term of 24 months suspended for 24 months, with requirements and a sexual harm prevention order.

The sentencing judge treated the child’s earlier overdose, departure from home and psychiatric admission as serious aggravating harm caused by the offending. The appellant appealed the sentence and the terms and duration of the sexual harm prevention order. The central issues were whether the judge had proceeded on a false factual basis, whether the offence fell within category 3A, and whether the resulting sentence and order were appropriate.

1. The appeal was allowed in part. The court quashed the overall sentence of 24 months and substituted nine months’ detention in a young offender institution, suspended for 18 months. The unpaid-work requirement was reduced from 200 to 100 hours. The remaining requirements were unchanged.

2. The judge made a significant error by treating the child’s changed behaviour, overdose and psychiatric admission as aggravating consequences of the charged offences. Those matters occurred in September 2018, whereas the indictment alleged conduct between 1 December 2018 and 4 February 2019. They therefore could not aggravate the charged offending.

3. Despite that error, the court held that the offending properly fell within category 3A. The appellant had disregarded a warning, there had been an element of grooming, and he had retained sexual images of the child. Previous convictions were aggravating, but vulnerability and immaturity mitigated sentence. A proportionate starting assessment was 12 months before a 25 per cent reduction for the guilty plea.

4. The sexual harm prevention order was necessary because the nature of the offending required protection of the child, irrespective of whether the child was willing to engage with the appellant. The general challenge to its terms was not made out. However, the court clarified that the order was for 10 years, rather than without limit.

• Court of Appeal (Criminal Division): Allowed the appeal in part in [2019] EWCA Crim 1628, reduced the suspended sentence and clarified the duration of the sexual harm prevention order.
• Crown Court at Oxford: On 3 April 2019, imposed concurrent suspended custodial sentences producing an overall term of 24 months, with requirements and a sexual harm prevention order.