Reed & Anor v The Queen (Rev 1)

When sentencing sexual offences against children where no sexual activity occurs, the court must assess harm by reference to the sexual activity the offender intended. Sentencing Act 2020, section 63 requires intended harm to be considered.

The sentencer should first select the guideline harm category by reference to that intended activity. The sentence should then be reduced to reflect that no activity occurred. The extent of the reduction depends on the facts. A small reduction will usually suffice where the offender was thwarted late or would have acted but for a fictional child. Early voluntary desistance may justify a larger reduction. No separate reduction is normally made merely because the offence was charged as an attempt.

This conjoined judgment concerned two applications for leave to appeal against sentence and four Attorney General references for unduly lenient sentence. The offenders had committed, or attempted to commit, sexual offences under the Sexual Offences Act 2003. Several intended victims were fictional; in another case the victim was real but the intended sexual activity did not occur.

The central issue was whether the approach in Privett & Others [2020] EWCA Crim 557, previously applied to arranging or facilitating child sexual offences, also governed incitement and attempted offences under other provisions of the Act. The court also determined the individual sentences and gave guidance on the drafting of charges for attempted offences.

1. Disposition. The applications by Reed and Bennett for leave to appeal against sentence were refused. The Attorney General’s references in respect of Crisp, Vasile, Millen and Keirle were allowed. Their sentences were quashed and substituted as set out below.

2. Section 63 of the Sentencing Act 2020 requires a court to assess both harm caused and harm intended. Accordingly, where an offender attempts a relevant child sexual offence or incites a child to engage in sexual activity, but no activity occurs, harm must initially be classified by reference to the sexual activity intended. The court must then make a downward adjustment to reflect the non-occurrence of that activity.

3. The extent of that adjustment is fact-sensitive. It will usually be small where the offender was prevented at a late stage, or where a fictional child meant that the intended activity could never occur but the offender would otherwise have carried it out. A larger reduction, potentially outside the guideline range, may be justified by early voluntary desistance and short-lived offending. There should ordinarily be no additional reduction merely because the offence is an attempt.

4. The court followed Privett & Others [2020] EWCA Crim 557 and extended its approach to the offences listed in paragraph 5 of the judgment. It treated the contrary Category 3 approach in Attorney General’s Reference (No.94 of 2014) (R v Baker) [2014] EWCA Crim 2752, Cook [2018] EWCA Crim 530, Manning [2020] EWCA Crim 592 and R v Russell [2020] EWCA Crim 956 as per incuriam and unsustainable because it disregarded intended harm.

5. Immediate custody will usually be appropriate for offences of this gravity. Exceptional circumstances, including powerful mitigation, rehabilitation material and the practical impact of custody during the COVID-19 emergency, may nonetheless justify suspension.

6. The court substituted a two-year suspended sentence for Crisp, a two-year suspended sentence for Vasile, seven years’ imprisonment for Millen, and 30 months’ imprisonment for Keirle. It corrected the relevant surcharge orders. It also held that the erroneous name of Crisp’s fictional victim was an obvious typographical error which could be ignored; the judge’s attempted remittal and amendment process was unnecessary and ineffective.

7. As guidance for the future, an indictment or charge alleging an attempt should identify both the attempt provision and the substantive sexual offence said to underlie it.

• Court of Appeal (Criminal Division) Conjoined the six matters, refused the sentence applications of Reed and Bennett, and allowed the Attorney General’s references concerning Crisp, Vasile, Millen and Keirle.
• Crown Court at Chester Reed received concurrent two-year sentences; his application for leave to appeal was refused.
• Crown Court at Mold Bennett received a total of 42 months’ imprisonment; his application for leave to appeal was refused.
• Crown Court at St Albans Crisp received a 12-month suspended sentence; it was replaced with a two-year suspended sentence.
• Crown Court at Basildon Vasile received a community order; it was replaced with a two-year suspended sentence.
• Crown Court at Southampton Millen received three years’ imprisonment; it was replaced with seven years’ imprisonment.
• Crown Court at Portsmouth Keirle received a community order; it was replaced with concurrent custodial sentences of up to 30 months.