R v Leon Roach

Where sexual offending against a supposed child involves no actual child victim, harm is assessed by reference to the intended harm. A modest reduction within the applicable sentencing-category range will usually reflect the absence of a real victim where the offender would otherwise have carried out the offence. No separate reduction is warranted merely because the offence is an attempt.

In sentencing connected offences, the totality principle prevents aggravating features already used to increase the principal sentence from increasing a concurrent sentence to the same extent. A sentence must remain within the guideline category range unless the circumstances justify departure.

The appellant pleaded guilty to attempting to cause a person he believed to be a boy aged 13 to engage in non-penetrative sexual activity. The supposed child was an adult using a false online profile. He also pleaded guilty to two offences of engaging in a barred activity, contrary to section 7 of the Safeguarding Vulnerable Groups Act 2006.

At Liverpool Crown Court, the appellant received an extended sentence of eight years, comprising four years’ custody and four years’ extended licence, with concurrent 18-month sentences for the safeguarding offences. He appealed on the ground that the sentences were manifestly excessive.

The central issues were the proper adjustment for the absence of an actual child victim and the proper application of totality to the related safeguarding offending.

1. The appeal was allowed to the extent of reducing the custodial sentences. The four-year custodial term for the sexual offence was manifestly excessive. It was replaced by three years. The concurrent safeguarding sentences were reduced from 18 months to ten months. The extended licence period remained four years, producing an extended sentence of seven years.

2. The judge correctly adopted a Category 2A starting point of three years for the substantive offence under section 10 of the Sexual Offences Act 2003. The appellant’s previous convictions and offending while subject to a community order justified a significant uplift. His mental-health conditions supplied some mitigation.

3. However, the sentencing judge did not appear to have made the modest downward adjustment required by Reed & Anor v The Queen [2021] EWCA Crim 572 for the absence of an actual child victim. The court held that no sentence outside the applicable category range was justified. The proper notional sentence before plea was no more than 42 months, reduced to 28 months for the guilty plea.

4. For the barred-activity offences under section 7 of the Safeguarding Vulnerable Groups Act 2006, comparable guidance for breach of a Sexual Harm Prevention Order indicated a 12-month sentence before plea credit. The previous convictions and continuing community order could not aggravate those offences to the same extent because they had already aggravated the sexual offence.

5. Applying totality, the sexual-offence sentence could be increased to no more than three years to reflect the overall criminality. The court did not disturb the finding of dangerousness or the four-year extended licence period.

• Court of Appeal (Criminal Division): Allowed the sentence appeal in part and reduced the custodial term, under [2024] EWCA Crim 211.
• Crown Court at Liverpool: On 12 May 2023, imposed an extended sentence of eight years, comprising four years’ custody and four years’ extended licence, with concurrent 18-month sentences for the safeguarding offences.