Clarifying the Threshold for Suspended Sentences in Online Child-Grooming Cases: Payne v R [2025] EWCA Crim 766

Introduction

Payne v R is a Court of Appeal (Criminal Division) decision that recalibrates the sentencing landscape for online child-grooming offences where:

the offender’s culpability is undisputedly serious,
the Sentencing Guidelines point toward custody, yet
the offender presents a low risk of re-offending, enjoys strong personal mitigation and a pre-sentence report (PSR) favours a community-based disposal.

The case arose after Mr Payne, a 39-year-old man with no previous convictions, pleaded guilty to (i) attempting to meet a child following grooming (s 1(1) Criminal Attempts Act 1981) and (ii) attempting to engage in sexual communication with a child (s 1(1) Criminal Attempts Act 1981). Although the sentencing judge categorised the offending correctly under the Sentencing Council Guidelines, he imposed 12 months’ immediate custody. The Court of Appeal quashed the custodial terms and replaced them with equivalent sentences suspended for 12 months with a 30-day Rehabilitation Activity Requirement (RAR).

Summary of the Judgment

Constable J, giving the judgment of the court, allowed the appeal against sentence on the basis that the judge had:

Failed to give adequate reasons for rejecting the PSR’s recommendation of a community order, and
Erroneously treated immediate custody as the only means of achieving the sentencing objectives, notwithstanding the offender’s low risk of re-offending, genuine remorse, Autism Spectrum Condition, and significant steps toward rehabilitation.

The Court therefore:

Quashed the 12-month and 6-month immediate custodial sentences,
Imposed the same terms but suspended for 12 months, and
Attached a 30-day RAR without unpaid work (due to time already served).

Analysis

A. Precedents Cited & Guideline Framework

Although no prior authorities are expressly named in the judgment, the Court’s reasoning is anchored in three normative sources:

Sentencing Council Guidelines:
- “Sentencing Children and Young People/Arranging or Facilitating the Commission of Child Sexual Activity” (for the grooming attempt).
- “Sexual Communication with a Child” (effective 1 July 2022).
- “Imposition of Community and Custodial Sentences” (overarching guideline).
Principle in R v Manning and parallel authorities that emphasise the duty to give reasons when departing from a PSR or from guideline disposal ranges.
Cases on suspension of short custodial sentences (e.g., R v Kefford, R v Pommell) which highlight factors justifying suspension: low risk of re-offending, realistic prospects of rehabilitation, and strong personal mitigation.

The Court builds upon these authorities to crystallise a new, explicit expectation: sentencers must articulate why immediate custody is necessary where guidelines otherwise permit suspension and the PSR endorses a non-custodial route.

B. Legal Reasoning

Correct Guideline Categorisation Confirmed
• Grooming Attempt – Category 3 (starting point 18 months: range 12–30 months).
• Sexual Communication – Category A2 (starting point 12 months: range high-level community to 18 months).
• Downward adjustment for “attempt” properly applied at Step 2.
Re-evaluation of the Necessity for Immediate Custody
The appellate court scrutinised the “only immediate custody will do” conclusion. Under the Overarching Guideline, suspension may be appropriate where two or more factors are present; here both (i) realistic prospect of rehabilitation and (ii) strong personal mitigation were present. The court held that neither the harm caused, nor the statutory maximums, rendered suspension impermissible per se.
Requirement to Give Reasons
Section 52 of the Sentencing Code and common-law principles oblige a judge to explain the sentence in clear terms. The court found the reasons “difficult to discern,” breaching this requirement. In borderline cases, such transparency is vital for public confidence and for appellate review.
Fresh Sentence Crafted
Adhering to the principle of least interventionist correction, the Court retained the length of the terms (proportionality) but altered the mode of service (suspension) to reflect mitigation and public-protection considerations affirmed by the risk assessment tools (OGRS, RSR, OSP/c & OSP/i).

C. Impact of the Judgment

Sentencing Practice: Judges must now explicitly grapple with the question “Why not suspend?” in grooming and analogous offences lying at the boundary between custody and community disposals.
Pre-Sentence Reports: Greater judicial deference—though not de jure binding—is expected. Failure to justify divergence may amount to an error of principle.
Rehabilitation-Centric Approach: Payne underscores rehabilitation where risk tools and offender conduct indicate genuine change, even for abhorrent sexual offences.
Appeal Prospects: Provides a tangible template for challenging immediate custody if mitigation is robust, risk is low, and reasons are absent or perfunctory.
Guideline Clarification: Signals to the Sentencing Council any latent ambiguity in applying the “attempt” adjustments and suspension factors to online grooming offences.

Complex Concepts Simplified

Suspended Sentence: A custodial term the offender does not serve immediately. It “hangs over” for a specified period (here 12 months). Any new offence or breach of requirements (e.g., RAR) can activate the sentence.
Pre-Sentence Report (PSR): A document prepared by probation assessing risk of re-offending, harm, and suitability for community sentences.
Rehabilitation Activity Requirement (RAR): Flexible community-based interventions (counselling, therapy, employment support) tailored to reduce re-offending.
Risk Tools (OGRS, RSR, OSP/c, OSP/i): Actuarial instruments weighing static (age, conviction history) and dynamic factors to predict general and sexual re-offending.
Category/Culpability Matrix: Sentencing Council framework combining “harm” categories (1 = highest) and “culpability” bands (A–C) to yield starting points and ranges.

Conclusion

Payne v R lays down a clear precedent: immediate custody is not an automatic consequence for online child-grooming attempts where the sentencing range falls within 12–18 months and where the offender displays low risk and strong mitigation. Sentencers must:

Demonstrate explicit reasoning when rejecting PSR recommendations,
Assess suspension factors with rigor, and
Ensure sentences remain proportionate to both culpability and the realistic prospect of rehabilitation.

In the broader legal context, the decision harmonises public protection with rehabilitative justice, reinforcing transparency and principled flexibility within the sentencing process. Future appellants—and judges—will invariably cite Payne when debating whether “only a prison sentence will do.”