Ivan, R. v

For sentencing offences under section 9 of the Sexual Offences Act 2003, the presence of a potential higher-culpability feature does not automatically place offending in category A. Planning and age disparity must be significant, and grooming requires an evaluative assessment of the offender’s conduct and purpose. A refused request for sexual images will not generally elevate culpability in the same way as a request that is accepted.

An appellate court will not interfere merely because a sentence is lenient. It may decline to increase the sentence where the judge’s overall guideline approach was unobjectionable and the resulting sentence was not unduly lenient.

The Solicitor General referred, under section 36 of the Criminal Justice Act 1988, sentences imposed at Winchester Crown Court on 19 December 2019 as unduly lenient.

Daniel Ivan, aged 22, pleaded guilty to four offences of engaging in sexual activity with a child contrary to section 9 of the Sexual Offences Act 2003. The victim was 13 and the offending comprised four episodes of vaginal penetration over several weeks. The sentencing judge imposed concurrent terms of 15 months’ imprisonment, suspended for 24 months, with rehabilitation activity requirements and a sexual harm prevention order.

The central issue was whether the judge had wrongly placed the offending in category 1B, rather than category 1A, of the applicable sentencing guideline and had thereby imposed an unduly lenient suspended sentence.

1. Leave was granted, but the Court declined to interfere with the sentences. Although the sentences could be described as lenient, they were neither unduly nor objectionably lenient.

2. The offending was correctly placed in category 1 harm because it involved full vaginal penetration of a child. The question was whether the features relied on by the Solicitor General established category A culpability: significant planning, grooming, solicitation of sexual images, and significant age disparity.

3. Planning and age disparity are evaluative factors. They become higher-culpability factors only where the degree of planning or disparity is significant. Grooming likewise requires an assessment of whether the offender’s conduct and purpose made it a high-culpability feature. A request for sexual images that is refused will not generally itself establish higher culpability; an accepted request is materially different.

4. The sentencing judge had identified limited planning, some grooming, and a seven-year age disparity, but permissibly concluded that those features, separately and collectively, were insufficiently significant to put the offending in category A. The judge nevertheless treated the four offences, grooming, disparity of age and ejaculation as requiring a sentence above the category 1B starting point before mitigation and plea credit.

5. The Court accepted that the delay in prosecuting the young offender was unacceptable and formed part of the mitigation. The judge’s overall approach to seriousness and mitigation was unobjectionable. The concurrent suspended sentences therefore stood.

• Court of Appeal (Criminal Division): On a reference by the Solicitor General under section 36 of the Criminal Justice Act 1988, the Court granted leave but declined to increase the sentences: [2020] EWCA Crim 301.

• Crown Court sitting at Winchester: On 19 December 2019, concurrent 15-month terms of imprisonment were imposed and suspended for 24 months, with a rehabilitation activity requirement and a five-year sexual harm prevention order.