R v DEF

For an offence of causing or inciting a child under 13 to engage in sexual activity where the intended activity does not occur, the sentencing court should assess harm by reference to the intended activity and then make a fact-sensitive downward adjustment for the harm which did not result.

A lead sentence may be increased to reflect associated offending, but the increase must be proportionate and comply with the principle of totality. An excessive adjustment renders the overall sentence manifestly excessive.

The appellant was convicted in the Crown Court of two sexual assaults of his child and of causing or inciting the child to engage in sexual activity. He had also pleaded guilty to assault occasioning actual bodily harm and to failing to surrender to bail.

On 8 January 2024, the Recorder imposed a total sentence of 15 years and 3 months' imprisonment. The 14-year lead sentence was imposed for the inciting offence, with concurrent sentences for the sexual assaults and consecutive sentences for the non-sexual offences.

The appellant appealed against sentence, contending that the reduction for his desisting from the intended sexual activity was insufficient, that the six-year uplift for the other sexual offending was disproportionate, and that the total sentence was manifestly excessive.

1. Appeal allowed to the extent stated. The 14-year sentence on count 6 was quashed and replaced with 11 years' imprisonment. The concurrent sentences for counts 1 and 3, and the consecutive sentences for assault occasioning actual bodily harm and failure to surrender, remained unchanged. The total sentence was therefore reduced to 12 years and 3 months' imprisonment.

2. The Recorder had correctly classified count 6 as a Category 2A offence. Under the applicable guideline, where sexual activity is incited but does not occur, harm is assessed by reference to the activity intended. The court must then make a downward adjustment for the fact that no, or lesser, harm resulted. The extent of that adjustment is fact-specific. Although the Recorder was well placed to assess it after conducting the trial, a greater reduction was required for the appellant's desisting from the intended penetration.

3. The Recorder was entitled to treat count 6 as the lead offence and to increase it to reflect the overall seriousness of the sexual offending. However, the six-year uplift was disproportionate. It failed to respect the principle of totality and made the overall sentence manifestly excessive.

4. The victim surcharge of £156 was also quashed. Under Article 3(2) of the Criminal Justice Act 2003 (Surcharge) (No. 2) Order 2007, where an offence dealt with was committed between 1 April 2007 and 30 September 2012, a surcharge could be imposed only if the sentence included a fine. The earliest offence fell within that period and no fine had been imposed.

• Court of Appeal (Criminal Division) In [2024] EWCA Crim 1303, allowed the appeal to the extent of reducing the lead sentence, reducing the total sentence to 12 years and 3 months, and quashing the victim surcharge.
• Crown Court On 8 January 2024, imposed a total sentence of 15 years and 3 months' imprisonment following convictions for sexual offences and sentence for the further offences.
• Magistrates' Court On 5 October 2022, committed the appellant to the Crown Court for sentence after his guilty plea to assault occasioning actual bodily harm.