Sentencing Sexual Cases with a Fake Victim

There has been something of an explosion in the number of sexual offences cases coming to the Crown Court where there is no actual victim. Offenders are caught by so-called paedophile hunters or police officers going online and posing as children. In the recent case of Reg v Privett & Others [2020] EWCA Crim 557 (judgment April 19th) the Court of Appeal dealt with issues of sentencing in relation to these cases where the Offender is charged with an offence contrary to section 14 of the Sexual Offences Act 2003: ‘Arranging or facilitating the commission of a child sex offence’.

The Sentencing Council Definitive Guideline for an offence contrary to section 14 of the Sexual Offences Act 2003, requires the Judge to refer to the guideline for the applicable substantive offence of arranging or facilitating under sections 9 to 12. Section 14 SOA 2003 is a preparatory offence which is complete when the arrangements for the substantive offence are made or the intended offence has been facilitated. Because it is neither dependent on the completed offence happening nor its even being possible, the Court held that the absence of a real victim does not reduce the offender’s culpability (see paras 32, 59, 60).

The Court went on to explain that although, in general, the harm caused by the offence will usually be greater when there is a real victim than when the victim is fictional, section 143(1) of the Criminal Justice Act 2003 requires the court to consider the intended harm. These considerations are reflected in the Guideline. Thus, the court will consider the sentence that would be appropriate for the full offence and then impose a sentence for arranging or facilitating that is commensurate with that sentence. The Court said that the level of harm for a section 14 offence should be determined by reference to the type of activity arranged or facilitated. For a section 14 offence, the Guideline requires the judge to:- i) identify the category of harm, on the basis of the sexual activity the defendant intended; and ii) adjust the sentence in order to ensure it is commensurate with or proportionate to the applicable starting point and range if no sexual activity occurred, including because the victim is fictional (paras 46, 61–62, 67).

The Court concluded that there is nothing necessarily wrong in principle with a defendant who arranges the rape of a fictional six-year-old being punished more severely than a defendant who facilitates a comparatively minor sexual assault on a real 15-year-old. The sentence should be commensurate with the applicable starting point and range. However, the Court acknowledged that in cases where the child is a fiction this will usually involve some reduction to reflect the lack of actual harm (para 72).

Stephen Wood QC,Broadway House Chambers, https://is.gd/sINJIp