Manning, R. v (Rev 1)

An offence of causing or inciting a child to engage in penetrative sexual activity, where the activity does not occur, falls within category 3, as other sexual activity, of the relevant definitive sentencing guideline. It does not fall within category 1 merely because penetration was intended.

For multiple escalating sexual offences, the court must assess the overall criminality and apply totality. A custodial sentence of two years or less may properly be suspended where there is a realistic prospect of rehabilitation, strong mitigation and restrictive ancillary orders. The heavier practical impact of imprisonment during the Covid-19 emergency was relevant both to sentence length and to suspension.

The Solicitor General applied under section 36 of the Criminal Justice Act 1988 to refer as unduly lenient a sentence imposed at Bristol Crown Court.

The offender had pleaded guilty to four offences of sexual activity with a child, contrary to section 9(1) of the Sexual Offences Act 2003, and one offence of causing or inciting a child to engage in sexual activity, contrary to section 10(1). The conduct involved escalating sexual contact with a 15-year-old girl and incitement to penetrative sexual activity which did not occur.

The Crown Court imposed 12 months’ imprisonment, suspended for 24 months, with a curfew, rehabilitation requirements and ancillary protective orders. The central issues were the correct guideline category for the incitement offence, the appropriate custodial term, and whether suspension remained proper.

1. The application was allowed only in part. The court granted leave to refer the sentence and substituted a term of 24 months’ imprisonment for the 12-month term. It remained suspended for 24 months. All other orders were unaffected.

2. The prosecution’s principal contention about the incitement count was incorrect. Following Attorney General’s Reference No 94 of 2014 (R v Baker) [2014] EWCA Crim 2752 and the reaffirmation in R v Cook [2018] EWCA Crim 530, proposed penetrative activity which did not occur was properly treated as “other sexual activity” in category 3 of the relevant definitive guideline. The count was therefore category 3A, not category 1A.

3. The original 15-month starting point was unduly lenient. The offending comprised four separate contact offences and serious incitement, within an escalating and calculated course of conduct. A starting point of about 30 months’ imprisonment properly reflected the total criminality. After credit for the guilty pleas, this produced a custodial term of two years.

4. It was nevertheless open to the judge to suspend that term. There was a realistic prospect of rehabilitation, the offender had engaged with probation and treatment, his mitigation was strong, and the curfew and protective orders substantially restricted him and protected others. The offender’s risk was relevant but limited on the evidence.

5. The court further held that, where custody is necessary, its likely practical impact remains relevant to sentence length and suspension. During the Covid-19 emergency, prison conditions made imprisonment materially more onerous. Sentencers could, and should, take that factor into account while applying ordinary principles.

• Court of Appeal (Criminal Division): By [2020] EWCA Crim 592, the court granted leave under section 36 of the Criminal Justice Act 1988 and increased the custodial term from 12 to 24 months, while retaining its suspension.

• Crown Court at Bristol: On 24 February 2020, the offender received 12 months’ imprisonment, suspended for 24 months, for four offences under section 9(1) and one offence under section 10(1) of the Sexual Offences Act 2003, with ancillary orders.