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SENTENCING FOR OFFENCES AGAINST FICTITIOUS CHILDREN

What is the correct approach to sentencing when an offender attempts to initiate sexual contact with a fictitious child?

In Reed & Anor v The Queen [2021] EWCA Crim 572, April 21, 2021, the Court of Appeal for England and Wales, considered a series of appeals from sentence in which the following issue was raised:

[What is] the correct approach to be taken when sentencing certain offences against children under the Sexual Offences Act 2003 (“SOA”), namely when no sexual activity takes place, for instance, because i) the child is a fiction, ii) the defendant failed to persuade the child to engage in sexual activity or iii) the offender was thwarted.

The Court of Appeal indicated that “if the seriousness of an offence is to be judged by reference not just to the harm caused, but to the harm intended, then when a defendant encourages a child to engage in sexual activity but without that activity taking place…the harm should be assessed by reference to the defendant’s state of mind and intentions” (at paragraph 21).

The Court of Appeal concluded that sentencing judges should refrain from drawing a “rigid distinction” between cases where the sexual activity occurs and those in which it does not because the child is a fiction (at paragraphs 24 to 26):

…This decision will end the rigid distinction between those cases where particular sexual activity takes place and those cases where the defendant, for instance, does everything he is able to bring that sexual activity about but for reasons beyond his control it does not materialise. The sentencing judge should make an appropriate downward adjustment to recognise the fact that no sexual activity occurred, as demonstrated by the court in Privett (at [67]). Furthermore, we consider this approach should apply to all of the offences set out in [5] above when the defendant attempts to commit these offences or incites a child to engage in certain activity, but the activity does not take place. The harm should always be assessed in the first instance by reference to his or her intentions, followed by a downward movement from the starting point to reflect the fact that the sexual act did not occur, either because there was no real child or for any other reason.

The extent of downward adjustment will depend on the facts of the case. Where an offender is only prevented from carrying out the offence at a late stage, or when the child victim did not exist and otherwise the offender would have carried out the offence, a small reduction within the category range will usually be appropriate. Where relevant, no additional reduction should be made for the fact that the offending is an attempt.

But when an offender voluntarily desisted at an early stage, and particularly if the offending has been short-lived, a larger reduction is likely to be appropriate, potentially going outside the category range.

As indicated in Privett at [72], it may eventuate that a more severe sentence is imposed in a case where very serious sexual activity was intended but did not take place than in a case where relatively less serious sexual activity did take place.