Woolner, R. v

For an offence under section 14 of the Sexual Offences Act 2003, the guideline harm category is determined by the sexual activity which the offender intended to arrange or facilitate. It is not reduced to category 3 merely because the intended child was fictional and sexual activity could not occur. The absence of actual harm does not reduce culpability, but it ordinarily requires a proportionate reduction from the applicable starting point and range when sentence is fixed.

The Solicitor General referred the offender’s sentence as unduly lenient under section 36 of the Criminal Justice Act 1988. The offender had pleaded guilty in the Magistrates’ Court and was committed to the Crown Court at St Albans for sentence.

He had arranged to meet a person whom he believed to be a 13-year-old boy for explicit sexual activity. The purported child was a police decoy. He also admitted offences involving extreme pornographic images and covert recordings beneath schoolgirls’ clothing. The Crown Court imposed a total of 12 months’ immediate imprisonment.

The central issue was whether the section 14 offence was correctly categorised as category 3A, or as category 1A by reference to the intended oral sexual activity.

1. The Reference was allowed. The sentence of six months’ imprisonment on the section 14 count was unduly lenient. It was substituted with two years’ imprisonment. The consecutive sentences on the other counts remained, producing a total sentence of 30 months’ imprisonment.

2. The court followed R v Privett [2020] EWCA Crim 557. A section 14 offence is complete when the prohibited activity is intentionally arranged or facilitated with the requisite intention. The absence of a real child does not reduce culpability.

3. Under the applicable guideline, the judge had first to identify harm by reference to the sexual activity intended. Intended penile penetration of the mouth fell within category 1. The fact that the intended activity did not, and could not, occur did not convert the offence into category 3.

4. The court then had to make a proportionate reduction to reflect the absence of actual sexual activity, consistently with R v Bayliss [2012] EWCA Crim 269. Significant personal mitigation, prison conditions during the Covid-19 pandemic, and full credit for the early guilty plea also fell to be reflected.

5. Authorities concerning charges under sections 9 and 10 of the Sexual Offences Act 2003 did not displace the reasoned conclusion in Privett for section 14 offences. The court distinguished R v Manning [2020] EWCA Crim 592 and R v Russell [2020] EWCA Crim. on that basis. It also cautioned, obiter, that Russell should not be treated as binding or decisive on the position under sections 9 and 10.

• Court of Appeal (Criminal Division): The Solicitor General’s reference was allowed. The sentence on count 1 was increased to two years’ imprisonment, resulting in a total sentence of 30 months’ imprisonment: [2020] EWCA Crim 1245 .

• Crown Court at St Albans: On 17 July 2020, the offender received a total of 12 months’ immediate imprisonment and a Sexual Harm Prevention Order.

• Magistrates’ Court: On 23 June 2020, the offender pleaded guilty and was committed to the Crown Court for sentence.