R v Gawain Dafydd Fallows

In sentencing multiple child sexual offences, the absence of a real child victim may justify only a limited downward adjustment. It does not substantially reduce the seriousness of persistent grooming, sexual solicitation, threats, age disparity or precautions to avoid detection. Multiple high-culpability factors may require an increase above the guideline starting point. The court must avoid double counting and excessive aggregation, but must ensure that the total sentence reflects the overall criminality. The appellate court’s concern is the total sentence rather than its precise concurrent or consecutive structure.

Following guilty pleas, the Crown Court at Portsmouth sentenced Gawain Fallows to an aggregate term of 2 years 6 months’ imprisonment for numerous child sexual offences. The offending included communications and image offences involving a real child, and attempted offences involving an undercover officer or decoy children who did not exist.

The Solicitor General referred the sentence under section 36 of the Criminal Justice Act 1988, arguing that it was unduly lenient because the starting points were too low, concurrency was overused and the aggravating features were insufficiently reflected. The central issue was whether the total sentence properly reflected the seriousness and cumulative effect of the offending.

The court granted leave to refer the sentence, held that it was unduly lenient, and increased the total term from 2 years 6 months to 5 years 6 months.

1. Totality. Simple aggregation of sentences for individual offences would produce too long a sentence. The sentencing court must consider totality within each group and overall. It must avoid double counting overlapping criminality. Nevertheless, the concern on an Attorney-General reference is the total sentence rather than its precise structure.
2. Real-child offending. The section 10 offence involving a real child fell within category 2A, with a three-year starting point. Grooming, significant age disparity, solicitation and retention of sexual images, and threats including blackmail were four culpability A factors. Their multiplicity required an upward adjustment before aggravating and mitigating features were considered. Persistence and the extensive message history aggravated the offence. The section 15A offence was also aggravated by persistence. The offences against the real child, before plea credit and totality, warranted at least four years’ imprisonment plus nine months for the indecent-image offences.
3. No real child. Applying the guidance in R v Reed & Others [2021] EWCA Crim 572, the absence of a real child required only a limited downward adjustment. The Snaresbrook offence was nevertheless a bad example involving grooming, persistence, age disparity and steps to avoid detection, meriting at least nine months after plea credit and, in principle, a consecutive sentence. The Portsmouth group involved further aggravating features and warranted at least three years after plea credit, subject to totality.
4. Final orders. The sentences for the Wigan section 10 and section 15A offences were substituted with terms of 3 years and 12 months respectively, concurrent within that group. The Snaresbrook sentence was substituted with 9 months concurrent with the Wigan sentences. The sentence for the principal Portsmouth offence was substituted with 2 years 6 months, consecutive to the Wigan group. The remaining sentences, the Sexual Harm Prevention Order and surcharge remained in force; notification requirements became indefinite.

1. Court of Appeal (Criminal Division): On a reference under section 36 of the Criminal Justice Act 1988, leave was granted, the sentence was found unduly lenient, and substituted sentences totalling 5 years 6 months were imposed.
2. Crown Court at Portsmouth: On 16 March 2022, the offender was sentenced following guilty pleas to an aggregate term of 2 years 6 months’ imprisonment.