Stephenson, R. v

For sexual communication with a child, the offence is complete when the sexual communication is made. Sexual activity need not occur. In sentencing an attempted offence involving an undercover officer, the court must assess both the foreseeable harm had the conduct succeeded and the absence of an actual child victim.

Where no definitive guideline applies, sentence must reflect the statutory maximum, culpability, harm and all personal mitigation. A term which approaches the maximum for a completed offence may be manifestly excessive where the offending was attempted, the offender voluntarily desisted, and powerful mitigation is present. Suspension is appropriate where there is a realistic prospect of rehabilitation and strong personal mitigation, unless immediate custody is necessary for punishment.

The appellant, aged 63 and of previous good character, pleaded guilty in the magistrates’ court to attempted sexual communication with a child. He had engaged in sexualised online chats with a person whom he believed was a 12-year-old girl, but who was a police officer.

He was committed to the Crown Court at Newcastle-upon-Tyne and sentenced to 12 months’ immediate imprisonment, with a sexual harm prevention order for 10 years. He appealed on the grounds that the term was manifestly excessive and that a community-based sentence was appropriate.

The central issues were the proper assessment of culpability and harm for an attempted sexual communication offence, and whether the custodial sentence should be reduced and suspended.

1. Appeal allowed. The 12-month immediate custodial sentence was quashed. It was replaced with six months’ imprisonment, suspended for two years, with supervision and a rehabilitation activity requirement of up to 30 days. The sexual harm prevention order was varied from 10 years to seven years.

2. Under Sexual Offences Act 2003, section 15 A(1), sexual communication with a child is complete when the communication is made. Sexual activity need not take place. The sexual content of the appellant’s messages, his proposed inducements, and his willingness to engage in sexual activity with a child demonstrated serious culpability.

3. However, the offence was an attempt. Although successful conduct would foreseeably have caused the harm inherent in exposing a young child to highly sexualised online communication, there was no child victim who could suffer actual harm. The appellant had also voluntarily ended the chats.

4. In the absence of a definitive guideline, the court assessed the statutory maximum, culpability and harm, alongside the substantial mitigation. That mitigation included previous good character, an industrious working life, the guilty plea, and the severe personal consequences of the offending. A sentence after trial approaching the two-year maximum for a completed offence was manifestly excessive on these facts. A six-month term after full credit for plea was appropriate.

5. Suspension was justified. The appellant had a realistic prospect of rehabilitation and strong personal mitigation. None of the factors indicating that immediate custody was required was present. The seven-year sexual harm prevention order should mirror the notification period resulting from the reduced sentence.

• Court of Appeal (Criminal Division): Allowed the appeal against sentence, quashed the immediate 12-month sentence, and substituted a six-month sentence suspended for two years.
• Crown Court at Newcastle-upon-Tyne: On 8 November 2019, imposed 12 months’ immediate imprisonment and a 10-year sexual harm prevention order.
• Magistrates’ Court: On 24 September 2019, the appellant indicated a guilty plea and was committed to the Crown Court for sentence.