R v Lee Bergstrom

When sentencing an attempted incitement of a child to engage in sexual activity, voluntary desistance requires a significant downward adjustment. The absence of actual harm is also relevant. Those factors must be balanced against culpability and aggravation, including previous child sexual offending and breach of a sexual harm prevention order. Such aggravating features may justify a sentence materially above the guideline starting point, but they do not remove the effect of voluntary desistance. On a sentencing appeal, the court should assess the total sentence under the totality principle and ask whether it is manifestly excessive. The appropriate balance in this case required a lower notional sentence, followed by an extended sentence of 11 years.

The appellant pleaded guilty to three offences committed shortly after his release from prison and while on licence: breach of a sexual harm prevention order, attempting to incite a child to engage in sexual activity, and attempting to engage in sexual communication with a child. On 10 January 2025, the Crown Court at Chelmsford imposed concurrent sentences, including an extended sentence of 12 years on count 2.

He appealed against sentence, arguing that the offending was short-lived, involved an attempt, caused no actual harm, and was followed by voluntary desistance. He also relied on remorse, rehabilitation, education and totality. No issue was taken with dangerousness or the extended-sentence regime. The central issue was whether the total sentence was manifestly excessive and whether sufficient weight had been given to voluntary desistance.

The Court of Appeal allowed the appeal to the extent indicated. It quashed the sentence on count 2 and substituted an extended sentence of 11 years, comprising five years’ custody and an extended licence period of six years. The concurrent sentences on counts 1 and 3 were not disturbed.

1. Appellate approach. The court did not need to resolve the possible ambiguity in the sentencing judge’s remarks about the five-year starting point. The appeal was determined by examining the total sentence and asking whether it was manifestly excessive. The totality principle requires the sentence to reflect all the offending behaviour by reference to overall harm and culpability, the aggravating and mitigating factors relating to the offences and the offender, and the requirement that the result be just and proportionate.
2. Desistance and absence of harm. In the section 10 sentencing guideline, voluntary desistance was materially different from prevention at a late stage by the police or others. The appellant’s voluntary desistance required a significant downward adjustment. The absence of actual harm was also relevant.
3. Aggravation and mitigation. The appellant’s repeated child sexual offending, four previous breaches or attempted breaches of court orders, reoffending within two to three months of release, and commission of the present offences while on licence significantly outweighed the mitigating effect of desistance and the absence of actual harm. The court was therefore entitled to conclude that a sentence before credit for the guilty plea should exceed the five-year guideline starting point. His professed remorse, educational prospects and rehabilitation efforts carried little weight in light of his record.
4. Sentence. A notional sentence of nine years gave insufficient weight to voluntary desistance. A notional sentence of seven and a half years struck the appropriate balance. The substituted extended sentence followed.

• Court of Appeal (Criminal Division) — allowed the appeal to the extent that the sentence on count 2 was quashed and replaced by an extended sentence of 11 years.
• Crown Court at Chelmsford — on 10 January 2025 imposed concurrent sentences of two years on count 1, an extended sentence of 12 years on count 2, and six months on count 3, following guilty pleas.