Court of Appeal Landmark Judgement
We were recently instructed by our client to represent his case at the Court of Appeal. This landmark case has confirmed that where a defendant sets out to sexually abuse a child, but in circumstances where the child happens to be an adult posing as a child, then the starting point for sentencing should be set by reference to the harm that the defendant intended to cause the fictional child.
The conflicting cases of Privett & Others  EWCA Crim 557;  2 Cr App R (S) 45 and Manning  EWCA Crim 592;  2 Cr App R (S) 46 caused uncertainty and so the court set out to provide clarity as to assessing harm in such cases.
PCD Solicitors are regularly instructed in the most serious sexual offence allegations in the Magistrates Court, Crown Court and Court of Appeal. Recently we considered in depth the case law surrounding sentencing offenders who have been convicted of attempting to commit a sexual offence against a child, where the child is actually fictional and the user at the other end of the computer is an adult. Our in depth knowledge of the case law applicable to such offences and, submissions made to the Court of Appeal paved the way for clarity on the sentencing of such a offences and assisted the court in setting a new precedent going forwards.
It is very common for law enforcement and hunter groups to pose as children online, acting as bait and often leading adults to commit criminal offences against what they believe to be a child. This is becoming an ever increasing tactic used by the police and one we have a vast amount of experience in dealing with.
The case law regarding sentencing for such offences was conflicting until the recent judgement provided by the court of appeal. The question offenders usually ask is "how can I be regarded as causing harm when there was a never a real victim?"
Approach to Sentencing
When a court is sentencing an offender they look firstly at culpability; there are four levels of culpability that can be identified for sentencing purposes, all of which relate to the state of mind of the offender.
The court will then consider harm. s143 of the Criminal Justice Act 2003 is widely drafted so that it encompasses not only those offences where harm was caused but also those where neither an individual nor the community suffers harm but a risk of harm is present. In some cases, as those cases before the court of appeal in the landmark judgement, there will be no actual harm; how can you cause harm to a child that does not exist? However, the court can assess the dangerousness of the offenders conduct; and will consider the likelihood of harm occurring and the gravity of harm that could have resulted. The court in such cases would then adjust the sentencing in a downward movement accordingly, to reflect that the child was fictional.
How can harm be caused to a child that does not exist?
When culpability and harm has been assessed the court refer to the aggravating and mitigating factors which may increase or decrease a the sentence stated within the applicable guidelines. Many clients first question when instructing us will be "what is my likely sentence", and due to the individuality of all cases, it is difficult to give exact sentencing advice as everyone has varying personal circumstances, which the court will take into consideration.
Thorough and detailed sentencing preparation is key and can make an incredible difference to a defendant being sentenced to custody or returning home to their family. We represent many offenders who want to plead guilty but want to avoid being sent into immediate custody and pride ourselves on the results we get. We spend the time with a client to prepare for sentence and to ensure the court is aware of all of the mitigating factors applicable to our client. We take an in depth statement regarding our client's background and really discuss exactly what has led them to make the choice to commit an offence. Sometimes a client has been impacted by a traumatic childhood, has ongoing mental health illnesses or, due to their lifestyle have just made bad decisions. We gather supporting evidence to robustly put forward our clients mitigation to ensure they receive the best sentence possible, one which is fair and just.
If you or a family member requires any advice on preparing for sentence or appealing a sentence, please call one of our lawyers today for a free and confidential chat.