Harm Intended v Harm Caused - Sentencing Sexual Offending

 'Let the punishment fit the crime' is a maxim that doesn't take much explaining nor much justifying. We don't sever limbs in this country preferring instead the deprivation of liberty as a more bloodless way of protecting the public with the hope that offenders can be returned to the streets as useful members of society.

What a crime was worth in terms of porridge used very much to be at the discretion of the judge provided he (invariably was a he then) didn't go beyond the maximum sentence or fly in the face of gentle and sometimes not so gentle pointers provided by the big wigs in the Court of Appeal.

Since the advent of the Sentencing Council all that has changed and now anyone can go online and type the crime of their choice into https://www.sentencingcouncil.org.uk/crown-court/ and get a good sense of what the going rate is.

Because every case turns on its own facts there is still some latitude allowed to judges as to where within the guidelines cases should fall and there is always the discretion permitted to them to depart from the guidelines if they can satisfactorily rationalise a basis for doing so.

For most offences the key questions are what's the offender's culpability and what harm has he caused (again, more often than not, it's a he). The public, reasonably, gets very exercised about the harm side of the equation. A killing represents the ultimate and most irrevocable harm. After homicide, sexual offending is generally considered to involve the greatest infliction of harm. When it involves children that is especially so because a. children are more defenceless and b. the development of a child can be irreparably poisoned by sexual offending.

There are many, many sexual offences relating to children to encompass harm actually done to children and harm intended towards children. Before the Internet most child sexual offending related to harm actually done to a child with harm intended to children being a harder offence to detect and investigate.

Since the advent of the online world there have been two main types of offending relating to devices. The creation, acquisition and distribution of indecent images of children. Then there is communication with children for sexual purposes or as a prelude to contact sexual offending.

Indecent images of children fall into three categories for sentencing purposes with Category A images encompassing the most serious level of abuse (penetration and/or sadism). Real children, real abuse, real trauma. Possession of Category A images has a starting point of 1 year with a range of 26 weeks to 3 years in prison. What is significant, from a legal perspective, is that prison sentences up to 2 years can be suspended. What this means, in practice, is that very many men (again, usually men) caught with the most serious images of child sexual abuse do not go to prison, at least the first time they commit the offence.

A disturbing reality is quite how many men view images of child sexual abuse online, the police are only able to investigate and prosecute a fraction. If every offender received an immediate custodial sentence the prison population would be significantly increased. Obviously many judges will imprison a first time offender but, in my experience at least, many more will not.

Turning to the communication offences, communications either inciting sexual activity by children or in preparation for contacting offending unsurprisingly attract, in numerous cases, substantial prison sentences. Much turns on the age of the child and the man (I won't keep including this caveat), and the nature of the activity incited or intended. A 17 year old boy soliciting a topless photo from his 17 year old girlfriend is a crime (yes, even though the of consent is 16) but that will generally be treated much less seriously than offences relating to children under the age of 16, especially where the offender is in his 20s or above. Offences involving children under the age of 13 are treated very seriously because a child under the age of 13 is in law conclusively deemed to be unable to consent.

In the last 10 years there has been a massive proliferation of cases involving vigilante groups posing as children on social media platforms waiting for men to make contact and, if communications turn sexual, then those men will be confronted and the police informed. Often this is a consequence of the man in question making arrangements to meet the 'child' and upon apprehension they are sometimes found with condoms, sex toys, toys and hotel bookings.

In such cases there can be no doubt whatsoever that, in the mind of the offender at least, he was anticipating a meeting with a real child for the purpose of real sexual abuse. The Court of Appeal has made plain (R v Privett (2020) EWCA Crim 557) over the last 18 months that such offenders should be sentenced by reference to the harm intended and not without a focus on the fact that there was no child to be harmed.

However, sometimes the offender makes no arrangement to meet and the vigilantes have to establish who the man is and where he lives or works and they will come to him. Depending on the nature and content of the communications these men too can be in jeopardy of substantial prison sentences. Such cases often attract media attention and the vigilante groups are generally anxious to publicise their activities and case outcomes. Many of the offences are susceptible to the Attorney General's Unduly Lenient Scheme whereby sentences can be referred to the Court of Appeal if considered to be much more lenient than they should be.

The men who engage in these communications are not deserving of much if any sympathy but, in my view, a distinction can and should be drawn between offenders who make arrangements to meet and betray, in the clearest terms, their intention to move offending offline and offenders whose online activity is definitely inappropriate and demands careful judicial examination and rehabilitative intervention but which is more a reflection of psychological immaturity or inadequacy rather than a determined intention to harm an actual child.

At any rate it's a curious feature of current sentencing norms that often men with images of actual children being harmed don't go to prison but most men who communicate with fictitious children do.