Cook [2018] EWCA Crim 530; [2018] 2 Cr.App.R.(S.) 16, CA
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In R v Cook [2018] EWCA Crim 530; [2018] 2 Cr.App.R.(S.) 16, the Court of Appeal (Lord Justice Treacy, Mr Justice Julian Knowles and Sir Peter Openshaw) allowed an appeal against sentence and reduced the appellant’s term of imprisonment, resulting in his immediate release.
Mr Cook had pleaded guilty to five offences at Lincoln Crown Court on 30 March 2017. On count 1, attempting to cause or to incite a child to engage in sexual activity, he had been sentenced to three years’ imprisonment. On counts 2 to 4, making indecent photographs of a child, and count 5, possession of an extreme pornographic image, he received shorter concurrent terms. A Sexual Harm Prevention Order for seven years was also imposed.
The offending on count 1 occurred between December 2015 and the end of March 2016. A police officer posing online as a 13-year-old girl was approached by Mr Cook. He sought to gain the trust of the fictitious child and steered conversations in a sexual direction. He asked about her sexual experience, became progressively more explicit, offered to help her through her first experience of masturbation, and eventually asked if she would allow him to take her virginity. He requested pictures repeatedly and on one occasion sent a picture of himself with an obvious bulge in his underwear. When it became clear he would not receive the images he was seeking, the tone of his messages changed and he brought the exchange to an end.
Mr Cook was arrested whilst applying for a DBS check, having expressed a wish to work with children as a sports coach. He was not frank in interview. Examination of his mobile phone revealed 32 category A indecent images and 74 at category B, depicting girls aged eight to ten. Two extreme pornographic images relating to bestiality between a female and a dog were also found.
Mr Cook, aged 31 at appeal, was of previous good character. A pre-sentence report contained full admissions and an acknowledgement of an attraction to underage females. The author considered him capable of being managed in the community and proposed either a suspended sentence or a community order with appropriate requirements.
The sentencing judge had applied the guideline for offences contrary to section 10 of the Sexual Offences Act 2003. Because penetrative activity had been incited, he put the case into harm Category 1 and assessed culpability at Level A on the basis of grooming behaviour. For a Category 1A case the starting point for the full offence is five years with a range of four to ten years.
The grounds of appeal contended that the judge erred in putting the case into Category 1A when it should have been classified as Category 3A. Counsel, who had initially advised that there were no tenable grounds of appeal, had become aware about nine months later of the decision in R v Gustafsson [2017] EWCA Crim 1078. That decision was one of a series, including R v Buchanan [2015] 2 Cr.App.R.(S.) 13, Attorney General’s Reference No 94 of 2014 (Baker) [2014] EWCA Crim 2752 and Attorney General’s Reference No 94 of 2015 [2015] EWCA Crim 2384, holding that where the case involves inciting rather than causing sexual activity and where there was no physical contact with or any communication with a real child, Category 3A is the correct category.
The Court of Appeal accepted that Mr Goldwater’s submission as to mis-categorisation was correct in the light of those authorities. A case falling within Category 3A has a starting point of 26 weeks and a range between a high-level community order and three years’ custody. The court considered that the custody threshold was nevertheless crossed given the period of time over which Mr Cook persisted, the fact that he incited full sexual intercourse with a girl he knew to be well under age, the period of time over which he offended, the aggravating effect of the counts alleging possession of indecent images of children or extreme pornography, and a significant disparity in age between the offender and his intended victim.
The court concluded that a sentence of 21 months would have been appropriate prior to credit for guilty plea, for which a full one-third reduction was due. Mr Cook had by that stage served more time than a correct application of the guideline would have mandated. The appeal was allowed by substituting a term of 14 months on count 1 in place of the three years imposed below. The other sentences remained unaffected. In short, the appeal succeeded because the judge had wrongly categorised the offence as harm Category 1 when, in a case involving no real child and inciting rather than causing sexual activity, Category 3 was appropriate, resulting in the appellant’s immediate release.