Privett, R. v

For an offence under section 14 of the Sexual Offences Act 2003, harm is identified by the sexual activity which the defendant intended to arrange or facilitate. A fictional child does not reduce culpability and does not automatically place the offence in harm category 3. The sentence must then be commensurate with the applicable starting point and range. Where no sexual activity occurred, including because the child was fictional, this will usually require a reduction to reflect the absence of actual harm. The exercise remains fact-sensitive and may properly produce a higher sentence for arranging the rape of a fictional young child than for facilitating a less serious sexual assault on a real older child.

Four defendants appealed sentences imposed at the Crown Court at Taunton for offences under section 14 of the Sexual Offences Act 2003. Each had communicated online with an undercover officer posing as the mother of a fictional child. Each made arrangements to commit serious sexual activity with the child and travelled to meet the supposed mother, having taken items intended to facilitate the abuse.

The sentencing judges treated the intended penetrative activity as category 1 harm under the applicable guideline. Three appellants received extended sentences after findings of dangerousness. The central issue was whether a section 14 offence involving a fictional child must always be treated as category 3 harm, subject to upward adjustment, or whether harm should instead be assessed by the sexual activity intended.

1. The appeals against sentence were dismissed, save that Smisson’s victim surcharge order was reduced to £120.

2. A section 14 offence is preparatory. It is complete when the defendant intentionally makes the arrangement or facilitates the intended child sex offence. Completion, or even the possibility of completion, is unnecessary. The absence of a real child therefore does not reduce culpability.

3. The applicable guideline requires a two-stage approach. First, the court identifies the harm category by the type of sexual activity intended. Secondly, it adjusts the sentence so that it is commensurate with, or proportionate to, the applicable starting point and range. The absence of actual sexual activity, including where the child was fictional, will usually justify some reduction for the absence of actual harm.

4. The court rejected an automatic category 3 approach. Although a real victim will usually mean greater harm, section 143(1) of the Criminal Justice Act 2003 requires intended harm to be considered. A fictional victim cannot therefore predetermine the harm category. Attorney General’s Reference No. 94 of 2014 (R v Baker) [2014] EWCA Crim 2752 concerned a different offence of incitement and did not govern section 14 cases. The approaches in R v Bayliss [2012] EWCA Crim 269, R v Collins [2015] EWCA Crim 915 and R v Lewis [2016] EWCA Crim 304 correctly reflected the guideline. R v Stillwell [2016] EWCA Crim 1375 and R v Allington [2019] EWCA Crim 1430 had failed properly to do so.

5. The individual sentences, including the findings of dangerousness where made, were not manifestly excessive. The court invited the Sentencing Council to consider clarification of the relevant guideline.

• Court of Appeal (Criminal Division): Sentencing appeals dismissed, save for the reduction of Smisson’s victim surcharge order: [2020] EWCA Crim 557 .
• Crown Court at Taunton: Sentenced the four appellants for section 14 offences and associated offences where applicable. Three appellants received extended sentences after findings of dangerousness.