Imprisonment - Length of sentence

R v Hudson: Court of Appeal, Criminal Division (Lord Justice Elias, Mr Justice Eady, Mr Justice Macduff): 21 September 2011

The defendant, aged 54, made contact with the complainant, G, aged 10, via an adult website called 'be naughty'. That website required users who registered to certify that they were over 18 years. G, or some other person, had so certified and G, whose parents were estranged, had represented herself to the defendant as being 19 or 20. The defendant, aged 52, had a series of sexually explicit chats with G, who was highly sexualised for her age, through the website, on facebook and through text messages.

Later, he began webcam chats with G, despite the fact that from her physical appearance, it would have been evident that she was much younger than 18 years. During one such webcam chat, the defendant, at G's urging, masturbated. The same day the defendant incited G, then aged 11, to meet him for the declared purpose of engaging in sexual intercourse. G's mother became aware of what was happening and intervened. Accordingly, the defendant never met G and no sexual intercourse actually took place between them.

The defendant, who had no previous convictions, was arrested. He admitted having had contact with G but contended that he had, prior to the webcam chats, believed she was over 18 years and thereafter, he had given her the benefit of the doubt. After the mother had given evidence at the trial, but before G gave evidence, the defendant pleaded guilty to causing or inciting a child under 13 to engage in sexual activity (count five), for which he was sentenced to seven years' imprisonment.

He further pleaded guilty to engaging in sexual activity in the presence of a child, for which he was sentenced to three years' imprisonment, to run concurrently. The pleas followed a Goodyear indication by the judge that a full discount would be given for guilty pleas.

In respect of count five, the judge had taken a starting point of nine years. He gave the defendant credit of less that one-third and reduced the sentence to seven years' imprisonment. In sentencing the defendant, the judge had found, as an aggravating factor, that the defendant had groomed G. Having had regard to the relevant sentencing guidelines, he had declined to give a discount for the fact that sexual activity, in respect of count five, had not taken place. The defendant appealed against sentence.

He contended that the sentences were manifestly excessive and wrong in principle in that: (i) insufficient credit had been given for his guilty plea; (ii) the judge had wrongly applied the guidelines of the Sentencing Guidelines Council and had applied the wrong starting point; (iii) the judge had wrongly identified the guilty plea as the only mitigating factor (other mitigating facts included that no actual sexual intercourse had occurred, that little or not harm had been caused to G, that G had taken the lead in the offences, and his good character); and (iv) the judge had failed to sentence in accordance to the Goodyear indication.

He further submitted that the sentence of three years' imprisonment on count four was out of line with the recommended 18-month starting point in the guidelines. The appeal would be allowed.

The sentencing guidelines for causing or inciting a child under 13 to engage in sexual activity, namely straight sexual intercourse, recommended a starting point of seven years, with a range of between five and ten years. The offence was committed whether or not sexual activity actually took place. The guidelines made no distinction in that regard.

On the other hand, the commentary on the guidelines made it plain that where sexual activity did not take place a reduction in the sentence on a guilty plea was appropriate. The watch words were 'culpability' on the part of the defendant and whether 'harm had been caused' to the complainant.

In the instant case, the sentences were manifestly excessive. The court agreed with submissions made on behalf of the defendant. It would be an unusual case, in circumstances where sexual activity had not taken place and where the parties had not met, that no discount for the starting point would be given following a guilty plea. The instant case was not one in which the defendant had needed to break down G's defence in order to commit the offences. G had required little persuasion in that respect. In all the circumstances, a full discount would be given.

The sentences would be quashed and substituted by sentences of four-and-a-half years' imprisonment on count five and one year's imprisonment on count four, to run concurrently.

R v Broughton [2007] 2 Cr App Rep (S) 72 considered; R v Abundantly [2008] 2 Cr App R (S) 21 considered.

Michael Duffy (assigned by the Registrar of Criminal Appeals) for the defendant.