R v Oliver Pates

An applicable Sentencing Guideline must be followed. For causing or inciting a child under 13 to engage in sexual activity, harm is assessed principally by the sexual activity intended. Where the apparent child is an undercover officer and the activity does not occur, the reduction for absent actual harm should normally be very small if the offender would otherwise have carried out the offence. A further reduction for attempt is impermissible where the guideline adjustment has already addressed the absence of completed harm. Remoteness factors must not be counted twice. Concurrent sentences must still reflect separate victims and repeated offending. In replacing an unduly lenient sentence, the appellate court may consider delay and compliance with the suspended sentence when fixing a fair and proportionate term.

After guilty pleas, the Crown Court at Bradford imposed concurrent suspended sentences totalling 24 months for attempted sexual communication with children and attempting to incite a child under 13 to engage in sexual activity. The apparent children were undercover police officers. On a reference by His Majesty's Solicitor General under section 36 of the Criminal Justice Act 1988, the Court was asked whether the lead sentence had been reduced excessively and failed to reflect the aggregate offending. The central issues were the proper application of the Guideline, double counting of features arising from the absence of an actual child and direct contact, and totality.

1. Guideline and harm. The Court granted leave for the reference. The sentencing judge was legally required to follow the applicable Guideline and wholly failed to do so, which was an error of principle. The offence was properly categorised as B2: the intended activity involved penetration, culpability was B, and the starting point was six years with a range of three to nine years. The Guideline made intended harm the principal driver. Where the activity did not occur because the apparent child did not exist, only a very small reduction within the category range was usually appropriate, with no additional reduction for attempt.
2. Excessive reductions. The judge had already treated the offence as low category 2 harm, taking account of the undercover nature of the operation and the absence of an actual child. Further reductions for lack of physical contact, lack of face-to-face virtual contact, the description of the conduct as procuring masturbation, and the presence of only one category 2 factor therefore involved double counting. The further attempt reduction was also wrong because the absence of completed harm had already been reflected. Lack of previous convictions required consideration but probably carried little weight. The approach was inconsistent with R v Privett [2020] EWCA Crim 557 and [2020] 2 Cr App R(S) 45. Attorney-General's Reference No 94 of 2014 (R v Baker) [2014] EWCA Crim 2752 and [2016] 4 WLR 12 might, on one reading, have supported the judge's approach, but Privett did not follow it and the later Guideline reflected Privett.
3. Totality. If concurrent sentences were imposed, the sentence for the lead count had to include a manifest increase reflecting the offending against two apparent children and the repeated offending against Jess over a fortnight. The original sentence contained no such uplift.
4. Replacement sentence. The period between sentence and the reference hearing, the absence of previous convictions, and satisfactory compliance with the suspended sentence conditions were relevant to fixing a fair, just and proportionate replacement sentence. Following R v X, Y and Z [2026] EWCA Crim 845 at [168], those matters carried weight but did not require an arithmetical reduction. The lowest pre-plea sentence for count 3 was four years. The 25 per cent plea discount was honoured, producing three years.
5. Orders. The sentences on all three counts were quashed. Concurrent immediate sentences of four months, 12 months and three years were substituted for counts 1, 2 and 3 respectively, making a total sentence of three years' imprisonment. All other orders stood, and the offender was required to surrender by 4 pm.

• Court of Appeal (Criminal Division) — On the Solicitor General's reference under section 36 of the Criminal Justice Act 1988, leave was granted. The suspended sentences were quashed and concurrent immediate sentences totalling three years' imprisonment were substituted: [2026] EWCA Crim 1237 .
• Crown Court at Bradford — On 21 April 2026, HHJ Colin Burn imposed concurrent suspended sentences totalling 24 months following the offender's guilty pleas.