R v Peter Underwood

In an Attorney General’s reference against an unduly lenient sentence for attempting to incite a child to engage in sexual activity, the intended sexual activity determines the harm category. Where the offence was stopped only because the child was a decoy, the reduction for the absence of an actual child victim should ordinarily be very small. The court must then assess culpability under the applicable guideline, give proper effect to mitigation and delay, and apply the guilty-plea reduction. A suspended sentence is unavailable where the resulting term exceeds the statutory maximum capable of suspension. For offences of this kind, immediate custody may be required to achieve appropriate punishment.

The respondent pleaded guilty in the Crown Court at Truro to attempting to incite a child to engage in sexual activity. He had communicated online with a decoy profile which he believed belonged to a 13-year-old child. The sentencing judge placed the offence in category 1B and imposed 18 months’ imprisonment suspended for two years.

The Solicitor General referred the sentence under section 36 of the Criminal Justice Act 1988. The parties agreed before the Court of Appeal that the offence fell within culpability category A and that the guideline starting point for category 1A harm was five years’ custody. The central issues were the proper adjustment for the absence of a real child victim, the effect of mitigation and delay, and whether the sentence could properly be suspended.

1. Reference allowed. The sentence was unduly lenient. The Crown Court’s suspended sentence order was quashed and three years’ immediate imprisonment was substituted.
2. The substantive offence attempted was properly placed in category 1A under the Definitive Guideline. The relevant starting point was five years’ custody, with a category range of four to ten years. The solicitation of sexual images and the significant disparity in age were culpability A factors.
3. Because the child victim was a decoy, the intended sexual activity did not take place. That justified only a very small reduction: the offence was not completed for reasons unrelated to the respondent. The sentencing judge could also take account of personal mitigation, previous good character and delay.
4. Even after those matters, the notional sentence after trial could not have been below four years’ custody. Applying the appropriate 25 per cent reduction for the guilty plea produced a sentence of three years.
5. The substituted sentence had to be immediate custody. It was well above the maximum term of two years capable of being suspended as a matter of law. The consequences of changing the sentence, including the respondent’s expectation that he would not serve custody and his compliance with the original order, did not alter that conclusion.
6. The Court granted leave under section 36 of the Criminal Justice Act 1988 and ordered the respondent to surrender to custody by 4.00 pm that day.

• Court of Appeal (Criminal Division): On a reference under section 36 of the Criminal Justice Act 1988, the Court quashed the Crown Court sentence and substituted three years’ immediate imprisonment.
• Crown Court at Truro: The respondent pleaded guilty and was sentenced to 18 months’ imprisonment suspended for two years, with a rehabilitation activity requirement.