R v Peter Sanderson

A sentencing court must sentence for the offence charged and admitted. An attempt concerning non-penetrative sexual activity under Sexual Offences Act 2003, section 8(1) and (3), must not be sentenced as though it involved the distinct penetrative offence under section 8(1) and (2). The intended sexual activity determines the relevant harm category, while grooming and solicitation may affect culpability. On resentencing, the sentence must reflect the offender’s whole offending and appropriate credit for an early guilty plea.

The appellant pleaded guilty in the Magistrates’ Court to four offences committed through messages exchanged on KIK with persons he believed were girls aged 12 or 13. The Crown Court at Newcastle Upon Tyne imposed a total sentence of four years’ imprisonment, treating the lead offence as involving attempted penetration.

The lead offence was in fact an attempt to cause or incite non-penetrative sexual activity. The central issue was therefore the correct statutory offence and sentencing guideline category, followed by the appropriate sentence on appeal.

1. The appeal against the four-year sentence was allowed to the extent necessary to correct the unlawful sentence. The three concurrent one-year sentences were unaffected.
2. The lead offence was an attempt, contrary to section 1(1) of the Criminal Attempts Act 1981, to cause or incite a child under 13 to engage in non-penetrative sexual activity under section 8(1) and (3) of the Sexual Offences Act 2003. It was not the indictable-only offence under section 8(1) and (2), which concerns penetrative sexual activity.
3. The sentencing judge had therefore been invited to sentence for a different offence from that admitted by the guilty plea. The error was not cured by the surrounding communications or by the intended recipient’s anatomy. The correct offence fell within category 3A of the sentencing guideline. The intended activity was non-penetrative, but the preceding communications involved a significant degree of grooming and some solicitation of a sexual photograph.
4. The appropriate sentence for the lead offence, taking account of the aggravating and mitigating circumstances and the fact that it had to reflect the whole of the appellant’s offending, was four years before credit for the guilty plea. A reduction of one third produced a sentence of two years and eight months.
5. The sentence of four years was quashed and a sentence of two years and eight months’ imprisonment was substituted.

• Court of Appeal (Criminal Division) — In [2023] EWCA Crim 859, the appeal against sentence was allowed to the extent that the unlawful four-year sentence was quashed and replaced with two years and eight months’ imprisonment.
• Crown Court at Newcastle Upon Tyne — On 22 December 2021, imposed four years’ imprisonment for the lead offence and concurrent terms of one year for each of three other offences.
• Magistrates’ Court — On 22 February 2021, the appellant pleaded guilty to the four offences.