Introduction

This appeal concerns the proper application of Sentencing Council guidelines when sentencing a defendant for arranging or facilitating the commission of a child sex offence contrary to section 14(1) of the Sexual Offences Act 2003. The central question was whether, and to what extent, the absence of previous convictions must mitigate sentence when the court sentences a section 14 offence by reference to the guideline for the offence that would have been committed—in this case, sexual activity with a child under section 9.

The appellant, aged 63, engaged online with an undercover police operative posing as a 20-year-old on an adult platform. After being told the operative was in fact 14, the appellant continued communication, arranged a meeting for sexual activity involving anal penetration, and travelled into Newcastle, where he was arrested. He was convicted after trial of a section 14 offence. The Recorder adopted a “blended” starting point between category 1A and 1B under the section 9 guideline, then made a modest discount because the case involved a decoy. He declined to reduce the sentence for the appellant’s lack of previous convictions and gave limited weight to other asserted mitigations. The appeal—brought with leave—challenged that approach.

This judgment is significant for reaffirming that the absence of previous convictions is not merely neutral but must attract mitigation where the applicable guideline so states. It also clarifies that the mere absence of aggravating features cannot be recharacterised as mitigation, and offers appellate endorsement of a “blended” starting point between guideline categories where culpability straddles A and B.

Summary of the Judgment

The Court of Appeal upheld the Recorder’s methodology in two respects: using a “blended” starting point between category 1A and 1B of the section 9 guideline, and applying a modest “decoy” reduction because the intended victim was an undercover officer. However, it found an error of principle in the Recorder’s failure to mitigate for the appellant’s lack of previous convictions.

Under the section 9 guideline, “first-time offenders receive a mitigated sentence.” The Recorder appeared to treat the separate concept of “positive character/exemplary conduct” (which generally attracts no mitigation in this offence type) as negating mitigation for a clean record. The Court held that was wrong. It reduced the sentence by a further four months to reflect the appellant’s status as a first-time offender, quashing the 33‑month term and substituting 29 months.

The Court rejected a raft of other asserted mitigations (e.g., “absence of predatory behaviour,” “no grooming,” “low risk,” “opportunistic offending,” physical and mental ill-health), holding that these were either the mere absence of aggravation, already subsumed within first‑time offender status, or not significant in the circumstances. To that extent, the appeal succeeded only in part.

Analysis

1) Precedents and Authorities Cited

The judgment does not cite specific case authorities. Instead, it turns squarely on the Sentencing Council guideline for sexual activity with a child (section 9) as the relevant proxy when sentencing an arranging/facilitating offence under section 14. The appellate analysis rests upon two well-established propositions:

• Where a guideline applies, sentencers must follow it. A failure to do so is an error of principle warranting appellate correction.
• When sentencing a section 14 offence, the court should have regard to the guideline for the offence that would have been committed (here, section 9).

Thus, the decisive “authority” in Turner is the Guideline itself, especially on how first‑time offender status must be treated.

2) Legal Reasoning

a) The Guideline Framework Applied to s14 Offending

Because the offence under section 14 is one of arranging or facilitating a child sex offence, the court determines sentence by reference to the notional offence that was intended. Both harm and culpability are assessed as “actual, intended or foreseen.” On the facts, the intended offence was section 9 sexual activity with a child involving anal penetration of a 14‑year‑old. The Recorder properly assessed harm as category 1, given the contemplated penetrative activity. As to culpability, the significant age disparity pointed towards category A, but other factors aligned with category B. The Recorder therefore adopted a “blended” approach, setting a starting point of three years—midway between the published starting points for 1A (five years) and 1B (one year). The Court of Appeal noted this approach was not in issue and proceeded on the basis that it was legitimate.

b) Decoy/Sting Reduction

The Recorder gave a modest reduction of three months because the intended victim was an undercover operative. The Court did not disturb that approach. In effect, Turner accepts that a “decoy” feature may properly attract a small downward adjustment, acknowledging that no real child was harmed, while preserving the gravity created by the intended penetrative act and the steps taken to effect it.

c) The First-Time Offender Error

The core appellate holding is that the Recorder erroneously declined to give any reduction for absence of previous convictions. Paragraph 15 of the judgment reproduces a key passage from the section 9 guideline:

“First-time offenders usually represent a lower risk of reoffending. Reoffending rates for first offenders are significantly lower than rates for repeat offenders. In addition, first offenders are normally regarded as less blameworthy than offenders who have committed the same crime several times already. For these reasons first offenders receive a mitigated sentence.”

By contrast, the guideline also cautions that “positive character/exemplary conduct is different from having no previous convictions” and, for section 9 offending, “positive character does not generally attract any mitigation.” The Recorder appears to have relied on this latter point to deny mitigation for a clean record. The Court held that was a misreading: the “first‑time offender” factor and “positive character” are separate; the former mandates some downward adjustment. Failure to apply that mitigation was, the Court said, “a failure to follow the Guideline … therefore an error of principle.” The Court quantified the appropriate additional reduction at four months, yielding a total sentence of 29 months.

d) What Is Not Mitigation

The Court carefully parsed defence submissions said to amount to mitigation and found most were not truly mitigating, but rather the absence of aggravating features, or else they duplicated the weight of first‑time offender status. These included:

• Absence of wider sexual interest in children, absence of predation, grooming, exploitation, or abuse of trust.
• Lack of further offending.
• Assessments of low risk of reoffending by probation or a psychologist.
• Characterising the offence as “opportunistic.”
• Physical and mental ill-health typical of a man approaching retirement age.

On the facts, the Court rejected the “opportunism” label, pointing to the appellant’s active arrangements and travel to meet a child for penetrative sex. More generally, the judgment emphasises that “the absence of an aggravating factor” is not itself a mitigating factor. Nor is low risk a free‑standing mitigation; it typically neutralises calls for uplift rather than generating a discount.

3) Impact and Implications

a) Immediate Sentencing Practice

• Mandatory first‑time offender mitigation: Where the relevant guideline states that first‑time offenders receive a mitigated sentence (as the section 9 guideline does), courts must make a measurable reduction. Treating a clean record as neutral—by conflating it with “positive character”/“no mitigation”—is an error of principle.
• Decoy cases: A modest reduction for a decoy/sting setup is permissible but limited. The gravity of intended penetrative acts and the defendant’s steps towards commission remain central.
• “Absence of aggravation” ≠ mitigation: Submissions that merely point to features not present (no grooming, no predation, etc.) should not attract further discounts.
• “Blended” starting points: Turner tacitly endorses the practice of adopting a starting point between guideline categories where culpability straddles A and B, provided the sentencer reasons from the guideline structure.

b) Broader Effects Across Sexual Offences

• Section 14 across the board: The reasoning applies to all section 14 cases, not just online stings: the court must sentence by reference to the intended offence’s guideline and apply its mitigation structure, including first‑time offender reductions where stated.
• Clarity on character evidence: The judgment reinforces that “no previous convictions” and “positive character/exemplary conduct” are distinct. For section 9 offences, the latter generally carries little or no weight; the former must count.
• Appellate oversight: The Court’s willingness to reduce by four months, despite describing the overall change as “modest,” signals that apparently small deviations from guidelines are corrigible because they are errors of principle, not mere “tinkering.”

c) Practical Guidance for Advocates and Judges

• When sentencing a section 14 offence, explicitly identify the notional underlying offence and cite the relevant guideline provisions for harm and culpability.
• Where culpability straddles A and B, a reasoned “blended” starting point can be appropriate; explain why.
• Apply any decoy reduction sparingly and explain its scale.
• Distinguish clearly between:
  • Mitigating factors mandated by the guideline (e.g., first‑time offender), and
  • The mere absence of aggravation (which does not reduce sentence).
• Be cautious about over‑reliance on “low risk” or “opportunism”; they rarely warrant stand‑alone discounts, particularly where purposeful steps were taken towards penetrative abuse.
• Record expressly any mitigation given for lack of previous convictions to avoid appellate criticism.

Complex Concepts Simplified

• Section 14 (Sexual Offences Act 2003): Criminalises arranging or facilitating a child sex offence, even if no child is ultimately harmed. Intention and steps taken are key.
• Section 9 (Sexual activity with a child): The notional offence here. Sentencing for s14 typically uses the guideline for the intended underlying offence (s9) to calibrate harm and culpability.
• Harm Category 1: The highest harm in the s9 guideline, covering intended penetrative activity with a child. It attracts substantially higher starting points.
• Culpability Categories A/B: These reflect the offender’s blameworthiness. Category A captures higher culpability (e.g., significant age disparity, abuse of trust, sophistication). Category B is lower. When a case sits between A and B, a blended starting point may be used.
• “Blended” Starting Point: Selecting a starting point between two guideline categories where the facts straddle them. This is permissible if the sentencer reasons transparently from the guideline structure.
• Decoy Case: Police pose as a child online. There is no real child victim, but the offence is complete if the defendant arranges/facilitates the commission of a child sex offence. A small discount may reflect absence of actual harm, but intention and steps taken still carry substantial weight.
• First‑Time Offender Mitigation: Many guidelines expressly state that offenders with no previous convictions should receive a mitigated sentence. Turner confirms this must be applied where stated in the relevant guideline.
• Absence of Aggravation: Not having aggravating features (e.g., no grooming, no predation) does not, by itself, reduce sentence. It simply means there is no reason to increase it.
• Error of Principle: A legal misstep in applying the sentencing framework (such as failing to follow a guideline). Appellate courts will intervene even for seemingly modest corrections, because the error affects principle, not just quantum.

Conclusion

R v Turner sets an important and clear marker for sentencing practice in section 14 arranging/facilitating cases sentenced by reference to the section 9 guideline. The Court of Appeal held that the absence of previous convictions must attract a measurable reduction where the guideline says first‑time offenders receive a mitigated sentence. Confusing this with “positive character”—which generally carries little weight for section 9—constitutes an error of principle. Turner also delineates what is not mitigation: the mere absence of aggravating features, a low risk assessment, and generic health issues will not usually reduce sentence. The judgment tacitly approves a “blended” starting point where culpability straddles categories and recognises only a modest reduction for decoy scenarios.

The key takeaway is straightforward: in guideline‑led sentencing, the structured approach matters. Where the guideline says a factor mitigates, the sentencer must give it effect. Turner ensures uniformity and fairness by insisting that first‑time offender status is properly reflected in the final sentence for s14 offences, while safeguarding the gravity of intended harm in online child sexual exploitation cases.