R v Paul Harris

For an offence under section 14 of the Sexual Offences Act 2003, the relevant sentencing guideline is the guideline for the offence actually charged. Historic-offence guidance requiring measured reference to an equivalent offence applies where no current guideline exists. A section 14 offence is preparatory: culpability is assessed by the sexual activity intended, although the sentence must be adjusted where no sexual activity occurred, including where the victim was fictional. The absence of a real victim does not itself reduce culpability. The sentence was reduced because the judge had used the wrong guideline and had insufficiently allowed for non-completion and mitigation.

The appellant pleaded guilty in the Crown Court at Aylesbury to arranging or facilitating the commission of a child sexual offence contrary to section 14 of the Sexual Offences Act 2003, together with three offences involving indecent images of children. The intended victims were fictional children presented by undercover police officers. He was sentenced to seven and a half years’ imprisonment after credit for his guilty plea.

The sentencing judge referred to the guideline for the section 5 offence, partly because section 14 had later been amended. The appeal concerned whether that approach was correct and whether the sentence was manifestly excessive.

1. Appeal allowed. The sentence of seven and a half years was quashed. A sentence of six years’ imprisonment was substituted, representing eight years before credit for the guilty plea.
2. Section 59(1)(a) of the Sentencing Code required the court to follow the sentencing guideline relevant to the offender’s case unless doing so would be contrary to the interests of justice. The appellant had been convicted of arranging or facilitating a section 9 offence. That offence remained capable of being committed and had its own applicable guideline. The judge was therefore mistaken in referring to the section 5 guideline.
3. The guidance in R v H [2011] EWCA Crim 2753, R v Clifford [2014] EWCA Crim 2245 and R v Forbes [2016] EWCA Crim 1388 concerned historic offences for which there was no currently applicable guideline. It required measured use of an equivalent-offence guideline. That situation did not arise here.
4. Following R v Privett [2020] EWCA Crim 557, section 14 is a preparatory offence, complete when arrangements are made or the intended offence is facilitated. Guilt does not depend on completion or possibility of the substantive offence. Sentencing required identification of the harm category by reference to the intended sexual activity, followed by adjustment because no sexual activity occurred.
5. The intended conduct involved category A culpability and category 1 harm under the section 9 guideline. A completed offence would justify a starting point at the top of the category range, with a modest uplift for the image offences. Reductions were required for non-completion, the fictional and undercover scenario, the appellant’s lack of previous convictions and the destruction of his family relationships. Ten years before plea credit was manifestly excessive.

• Court of Appeal (Criminal Division): the appeal against sentence was allowed and the sentence was quashed and replaced with six years’ imprisonment: [2023] EWCA Crim 370.
• Crown Court at Aylesbury: on 26 October 2022, Her Honour Judge Tulk imposed seven and a half years’ imprisonment after credit for the guilty plea.