R v “WVF”

In sentencing offences involving both sexual exploitation of a child and indecent images, the court must consider every relevant Sentencing Council Guideline. Under the Sentencing Act 2020, s 59, departure is permitted only where following a relevant guideline would be contrary to the interests of justice. A parent ordinarily occupies a position of trust towards a non-adult child. Abuse of trust still requires close examination of the facts and clear justification. Deception, manipulation, commercial exploitation and directing a child to sexualised conduct may establish the aggravating factor. Guilty plea credit must distinguish necessary legal or evidential advice from tactical delay. The reference succeeded and the sentence was increased.

The respondent pleaded guilty to offences involving the production, distribution and taking of indecent photographs of children, and four offences of causing or inciting her daughter, aged 12, to engage in sexual activity. The offending involved financial exploitation, sexualised communications and physical conduct arranged for adult men.

On 8 November 2022, the sentencing judge imposed suspended terms totalling 18 months for the sexual activity offences and 15 months concurrent for the image offences. The Attorney General referred the sentence as unduly lenient under the Criminal Justice Act 1988. The central issues were which sentencing guideline applied, whether the offending involved abuse of trust, and the appropriate credit for the guilty plea.

The court granted leave and allowed the reference.

1. Under s 59 of the Sentencing Act 2020, a sentencing court must follow every Sentencing Council Guideline relevant to the offender’s case unless satisfied that doing so would be contrary to the interests of justice. The sentencing judge was therefore wrong to ignore the guideline for causing or inciting a child under 13 to engage in sexual activity and to sentence principally by reference to the indecent-image guideline.
2. The causing or inciting guideline addressed the respondent’s most serious criminality, including directing her daughter to strip, pose, engage in sexualised conversations and participate in sexualised conduct at the request of an older man. The relevant offence fell within harm category 3 and culpability A. Abuse of trust and commercial exploitation or motivation were culpability A factors. The starting point for a single offence was five years, compared with substantially lower starting points for the category C image offences.
3. R v Forbes [2016] EWCA 1388; [2017] 1 WLR 53 did not establish that a parent was outside the concept of abuse of trust. A parent will ordinarily be in a position of trust towards a non-adult child. The facts must nevertheless be closely examined and the finding clearly justified. The court explained that R v Forbes was addressing, among other matters, historic offending and situations involving older siblings. In any event, deception, manipulation, sexualised role play and conversations, and commercial exploitation supplied the additional features required on the facts and amounted to a gross breach of trust.
4. The sentences had to reflect all the criminality, while allowing for the short two-week period of offending and totality. The appropriate sentence before mitigation and plea credit was about seven years. After taking account of the respondent’s mitigation, five years after trial was the least sentence which properly reflected the offending.
5. The guilty plea exception in paragraph F1 of the relevant Overarching Guideline distinguishes cases where legal advice or evidence is needed to understand guilt from cases where the defendant delays the plea merely to assess the prosecution case. The respondent’s plea followed advice and was not simply tactical delay. She was entitled to 33 per cent credit.
6. A sentence of 60 months reduced by one-third produced 40 months, or three years and four months. That sentence was imposed on counts 4 to 7, concurrent with each other and with counts 1 to 3. The 15-month sentences on counts 1 to 3 remained, but were no longer suspended.

• Court of Appeal (Criminal Division): The Attorney General’s reference under s 36 of the Criminal Justice Act 1988 succeeded. The sentence was increased, [2023] EWCA Crim 65.
• Sentencing decision: On 8 November 2022, the respondent received suspended custodial sentences totalling 18 months for the causing or inciting offences and 15 months concurrent for the indecent-image offences.