R v Bergstrom [2025] EWCA Crim 1301: Voluntary Desistance Requires a Significant Step‑Two Downward Adjustment Under s.10 Guideline, Balanced by Aggravation and Totality

Introduction

This commentary examines the England and Wales Court of Appeal (Criminal Division)’s decision in R v Bergstrom [2025] EWCA Crim 1301, delivered by Mr Justice Lavender on 9 September 2025. The appeal concerned a sentence imposed at Chelmsford Crown Court for three offences arising from online sexual communications over six days in October 2024:

• Count 1: Breach of a Sexual Harm Prevention Order (SHPO), sentenced to 2 years’ imprisonment.
• Count 2: Attempting to incite a child to engage in sexual activity (Sexual Offences Act 2003, s.10), sentenced to an extended sentence of 12 years (6 years’ custody + 6 years’ extended licence).
• Count 3: Attempting to engage in sexual communication with a child (s.15A), sentenced to 6 months’ imprisonment.

All sentences were concurrent. The appellant, then 36, had an entrenched history of sexual offending against children (2008, 2009, 2015, 2020, 2022), and repeated breaches of orders and licence conditions. In the index offending, he used an Xbox to communicate sexually with a person presenting as a 13-year-old girl, requested sexualised images of feet, suggested recruiting a younger girl for sexualised performances, and discussed penetrative sexual activity including payment.

The appeal did not challenge the finding of dangerousness or the use of an extended sentence. Instead, it focused on the calibration of sentence, arguing that the judge:

• Set too high a starting point given the short-lived, attempted nature of the conduct with no actual harm;
• Failed to make an adequate downward adjustment because no real child was involved and the appellant voluntarily desisted;
• Gave insufficient credit for remorse and rehabilitation efforts;
• Misapplied totality in arriving at the overall sentence.

Central to the appeal was the correct application of the Sentencing Council guideline for s.10 (causing or inciting a child to engage in sexual activity), particularly the step-two downward adjustment where no sexual activity takes place, and how that adjustment interacts with powerful aggravating features, the totality principle, and the structure of an extended sentence.

Summary of the Judgment

The Court of Appeal upheld the finding of dangerousness and the appropriateness of an extended sentence but concluded that the sentencing judge did not give sufficient weight to the appellant’s voluntary desistance when fixing the notional (pre-plea) total sentence. While acknowledging very serious aggravating factors—persistent child sexual offending, breaches of SHPO, offending on licence—the Court held that a “significant downward adjustment” was still required at step two under the s.10 guideline because the incited activity did not occur and the appellant desisted.

The sentencing judge had identified a notional total of 9 years’ custody pre-plea, reduced to 6 years post-plea (reflecting full credit), and made that the custodial component of a 12-year extended sentence (6 years’ custody + 6 years’ extended licence). The Court of Appeal considered that 9 years was too high. It substituted a notional total of 7.5 years, which with full plea credit produced a 5-year custodial term. It therefore:

• Quashed the sentence on Count 2 and imposed an extended sentence of 11 years, comprising 5 years’ custody and 6 years’ extended licence.
• Left the sentences on Counts 1 and 3 undisturbed and concurrent.

In short, the appeal was allowed to the extent of reducing the custodial term on the extended sentence by one year (from 6 to 5), yielding a total extended sentence of 11 years rather than 12.

Analysis

1) Precedents and Authorities Cited

The judgment does not cite case law precedents by name. The Court’s analysis rests primarily on:

• The Sentencing Council guideline for offences under s.10 Sexual Offences Act 2003. The guideline expressly directs that, where activity is incited but does not take place, the court should identify harm by reference to the intended activity and then apply a downward adjustment at step two to reflect that no or lesser harm actually resulted. It adds:
  • Where the offender was prevented late or would otherwise have carried out the offence, only a very small reduction is usually appropriate.
  • No additional reduction should be made merely because the offence is an attempt.
  • Where an offender voluntarily desisted at an early stage, a larger reduction is likely and may go outside the category range.
• The Sentencing Council’s totality principle, which the Court quoted in substance: the total sentence must reflect all the offending, overall harm and culpability, aggravating and mitigating factors personal and offence-specific, and be just and proportionate.

The Court’s reasoning also proceeds within the statutory framework for extended sentences for dangerous offenders, though the dangerousness finding and the propriety of an extended sentence were not in dispute on appeal.

2) Legal Reasoning

a) Applying the s.10 Guideline: Step-Two Downward Adjustment

The sentencing judge placed Count 2 in category 1A (starting point 5 years; range 4–10 years). The core debate was the quantum of downward adjustment at step two in light of two asserted features: (i) no actual harm and (ii) voluntary desistance.

The Court reaffirmed the orthodoxy that no extra discount is given just because the offence is an attempt. However, it emphasised that where the sexual activity does not take place, the guideline requires a distinct step-two reduction for the absence of actual harm, the size of which is fact-sensitive. Where the offender voluntarily desists, a significant reduction is “likely,” potentially beyond the category range. In Bergstrom, the Court accepted that:

• There had to be a “significant” downward adjustment because the appellant voluntarily desisted and no harm was shown to have been caused.
• Nonetheless, those mitigation factors were “significantly outweighed” by powerful aggravators: a grave record of child sexual offending, breach of a SHPO, and offending shortly after release while on licence.

This balanced approach yielded a conclusion that the judge could properly fix a sentence “significantly in excess of the 5-year starting point,” despite the required downward adjustment, but that the judge’s notional 9-year total did not sufficiently reflect the weight that should be accorded to voluntary desistance.

b) Manifest Excess and the Totality Lens

The Court declined to decide the appeal by parsing isolated lines from the judge’s remarks (e.g., references to a 5-year “starting point” and uncertainty as to whether a discount had in fact been applied). Instead, it adopted the correct appellate approach: asking whether the total sentence was manifestly excessive when assessed against the totality principle. From that vantage point, the Court held that:

• The offence categorisation was not challenged and was sound.
• A significant step-two reduction was required on Count 2, even in a heavily aggravated case.
• Given the aggravation, the total could still justifiably sit well above the 5-year starting point; but 9 years as a notional total was too high.
• A notional total of 7.5 years struck the right balance; full plea credit then yielded a 5-year custodial term.

c) Extended Sentence and Dangerousness

Dangerousness and the imposition of an extended sentence were not disputed. The offender’s history—a sustained pattern of sexual offending against children, repeated order breaches, and rapid relapse into offending after release—supported the public protection findings. The Court preserved the 6-year extended licence period but adjusted the custodial term to 5 years to align with the corrected notional sentence after applying the step-two reduction and plea credit.

d) Mitigation and Personal Factors

The Court held that the appellant’s professed remorse, rehabilitation efforts, and educational prospects carried “little, if any, weight” against the backdrop of repeated, serious sexual offending, serial breaches of court orders, and further offending soon after release. This is a stark restatement of a familiar principle: in cases of entrenched, high-risk sexual offending, personal mitigation is frequently eclipsed by public protection and deterrent objectives.

3) Impact and Significance

a) Clarifying the s.10 Guideline’s Step-Two Adjustment

Bergstrom provides clear guidance for s.10 “attempt” scenarios:

• Courts must explicitly confront the step-two downward adjustment when no sexual activity occurred. Where voluntary desistance is established, a significant reduction is indicated, though it may be outweighed in the round by strong aggravation.
• The fact that no real child may have been involved can be relevant insofar as it evidences the absence of actual harm. However, where the offender was prevented late or would have proceeded but for external intervention, any reduction is likely to be small. Voluntary desistance is the differentiating factor.
• Even after allowing a meaningful step-two reduction, judges can lawfully move well above the starting point—indeed towards the top of the range—where aggravation is severe (e.g., repeated child sexual offending, SHPO breach, licence status).

b) Appellate Method: Focus on Totality, Not Linguistic Forensics

The Court emphasised that appellate review should not turn on minute exegesis of a judge’s sentencing remarks. The question is whether the totality is manifestly excessive. This reinforces best practice for sentencing: judges should structure their reasoning transparently (category, step-two adjustments, aggravation/mitigation, totality, plea credit), but appellate scrutiny ultimately appraises the overall proportionality of the sentence.

c) Extended Sentences for Persistent Sexual Offenders

Bergstrom reaffirms that extended sentences are apt for persistent, high-risk sexual offenders, especially those who breach SHPOs and reoffend swiftly on release. The custodial term must be properly calibrated by guideline principles and totality; the extended licence functions as a public protection mechanism and was rightly maintained here at 6 years.

d) Practical Implications

• For sentencing courts:
  • Apply step two expressly where no sexual act occurred; record the effect of voluntary desistance on the sentence.
  • Then articulate how aggravating features influence movement within (or beyond) the range.
  • Undertake a global totality check across all counts before applying plea credit; specify the notional pre-plea total.
• For the prosecution:
  • Where the offender was effectively prevented at a late stage or plainly would have proceeded, argue for only a small reduction under the guideline text.
  • Highlight order breaches and licence status as powerful aggravation supporting extended sentences and movement towards the top of the range.
• For the defence:
  • Evidence of voluntary desistance is materially valuable and should be documented; it can produce a significant reduction at step two.
  • Demonstrate the timing and nature of desistance (i.e., early and self-initiated) to distinguish from cases of late prevention.

Complex Concepts Simplified

• Voluntary desistance:
  • Stopping one’s offending course by one’s own decision, rather than because of outside intervention or impracticability.
  • Under the s.10 guideline, voluntary desistance—especially if early—supports a significant downward adjustment when no sexual activity occurred.
• Step-two downward adjustment (s.10 guideline):
  • First, the court assesses harm by reference to the intended sexual activity (step one).
  • Second, it reduces the sentence to reflect that no sexual activity took place and thus no actual harm occurred (step two). This is distinct from, and not duplicated by, any “attempt” discount (which the guideline says should not be added).
• Attempt vs. “no real child”:
  • No extra discount arises simply because an offence is an attempt.
  • Where the “child” was not real, that may be relevant to the absence of actual harm and hence to step-two adjustment; the weight depends on whether the offender would have carried out the offence and whether they voluntarily desisted.
• Totality principle:
  • When sentencing for multiple offences, the court must ensure the overall sentence is just and proportionate, reflecting the entirety of harm and culpability, not double-counting, and balancing aggravation and mitigation.
• Extended sentence:
  • For certain violent or sexual offenders found dangerous, the court may impose an extended determinate sentence comprising a custodial term plus an extended licence period.
  • The extended licence is designed to protect the public after release; its length is set by risk considerations and was left at 6 years in this case.
• Notional sentence and plea credit:
  • Judges often identify a notional total sentence before credit for plea, then reduce it according to the stage of the guilty plea (full credit typically one-third for the earliest indication).
  • In Bergstrom, the Court substituted a 7.5-year notional total; with full credit, this produced a 5-year custodial term.
• Concurrent sentences:
  • Sentences on different counts may run concurrently where they arise from a single episode or closely related conduct.
  • The controlling term here was Count 2, so adjusting that term altered the overall custodial period even though Counts 1 and 3 remained unchanged and concurrent.
• SHPO breach as aggravation:
  • Breach of a Sexual Harm Prevention Order is itself an offence and a major aggravating factor for any concurrent sexual offending, reflecting defiance of court orders and elevated risk.

Conclusion

R v Bergstrom clarifies the proper application of the Sentencing Council’s s.10 guideline in “attempt” and “no-activity” cases: a step-two downward adjustment is mandatory where no sexual activity occurs, and where voluntary desistance is proved, that reduction should be significant, albeit capable of being outweighed by strong aggravation. The Court of Appeal’s approach—eschewing hyper-literal parsing of sentencing remarks in favour of a totality-based proportionality assessment—affirms the correct appellate lens for sentence review.

In practical terms, Bergstrom provides a structured roadmap:

• Identify the category and starting point for the intended harm (s.10 guideline).
• Apply a reasoned step-two downward adjustment where no activity occurred, with special regard to voluntary desistance.
• Weigh in aggravation and mitigation, including recidivism, SHPO breaches, and licence status.
• Perform a totality cross-check across all counts; then apply plea credit; and fit the result into any extended sentence required for public protection.

The outcome—a reduction of the custodial term from 6 to 5 years while maintaining a 6-year extended licence—illustrates that even in cases of extreme aggravation, voluntary desistance must be accorded real weight. At the same time, persistent child sexual offenders who breach court orders and offend on licence should expect extended sentences and movement above the starting point, with mitigation carrying little force where risk and public protection predominate.