Hot on the heels of TL  EWCA Crim 1821, (see Paul Mason’s article), two recent cases of interest out of the Court of Appeal looking at sentencing those caught in the sting, and those for whom the sting is really just vehicle for blackmail.
In Cassell  EWCA Crim 1983, the Court of Appeal usefully reviewed several recent authorities sentencing appellants who had all attempted, in varying degrees, to engage in sexual activity with underage girls online but were really communicating with members of “paedophile hunter” groups.
Cassell was sentenced to 3 years in custody after a trial for conduct which involved,
Sexual chat including suggesting penetrative sex with a “13 year old girl”;
Sending pictures of his penis and requesting indecent pictures;
Arranging to meet;
Attending a meeting (obviously not with an actual child!).
The appellant had a bad record but nothing for sexual offences. The Court of Appeal described this as “severe” but not manifestly excessive.
The Court cited determining factors in other cases including the obvious - an attempt is obviously less serious than the full offence - but (perhaps surprisingly) concluded that failing to attend an arranged meeting does not make a substantial difference to sentence compared with cases where a defendant did attend.
The Court did not explore the apparent discrepancy between the approach in Hartfield  EWCA 1499, an attempted s15 offence (meeting a child following sexual grooming), and a similar offence in Aaron Jones,  EWCA Crim 1753. In Hartfield the Attorney-General, the defence and the Court all agreed that, notwithstanding the intention to meet for penetrative sexual activity, the fact that these were attempts put them into category 3 of the sentencing guideline.
In Aaron Jones the Court said the judge could have placed the offences into category 1 (irrespective of the fact that they were attempts). The defendant was also sentenced for an attempt to commit a section 10 offence (incitement) but the judge elected to sentence on the basis of the attempted s15 offence, which carries a lower sentence, a decision described as ‘generous’. That may have influenced the Court’s approach. They did not appear to consider the case of Baker  4 W.L.R 121 where the Attorney-General conceded that in incitement cases, the fact that a more serious activity was incited than took place does not put it in the higher bracket.
These are clearly difficult sentencing exercises for the courts. Is the defendant who attempted to incite or to meet with something less than penetration in mind entitled to a greater distinction from someone with penetration in mind, than simply being at the lower end of the same category 3 bracket? Is there a qualitive difference between the defendant who engages in the chat, who even arranges a meeting but doesn’t attend, and the defendant who turns up at the meeting with a duvet in the back of the car?
So much for the hunted what of those who hunt but for the purpose of blackmailing potential offenders rather than prosecuting them. In Ashmore  EWCA Crim 1966 the defendant and his co accused set up the sting in the usual fashion posing as underage girls online but when individuals came to meet the ‘child’ and were confronted by the defendants instead, they were met with demands for money rather than the police. In the appellant’s case he pleaded guilty to blackmailing 3 separate victims in these circumstances the starting point for the appellant of 4 and half years before discount for pleas was said to be robust but not manifestly excessive.
Sarah Elliott QC specialises in defending all types of sexual allegations