Manning, R. v

Factual and Procedural Background

This opinion concerns an application by Her Majesty's Solicitor General under section 36 of the Criminal Justice Act 1988 for leave to refer to the court a sentence considered unduly lenient.

The offender, aged 49, pleaded guilty to four counts of sexual activity with a child and one count of causing or inciting a child to engage in sexual activity. He was sentenced in the Crown Court at Bristol to a 12-month suspended sentence order, suspended for 24 months, with a tagged curfew, a Rehabilitation Activity Order, and ancillary orders including a restraining order and a Sexual Harm Prevention Order. Compensation and prosecution costs were also ordered and paid.

The victim, a child with statutory anonymity for life, was 15 years old at the time of the offences. The offences involved escalating sexual contact and incitement to penetrative sexual activity which did not occur. The offender and victim met through darts competitions, and the offending conduct included kissing, inappropriate touching, and incitement through text messages.

Following detection, the victim suffered significant psychological harm including self-harm, PTSD, and depression. The offender had no previous convictions, was described as naive and immature, and had some disabilities. The sentencing judge imposed concurrent sentences reflecting the overall criminality and suspended the custodial sentence, citing mitigating factors including the offender's prospects of rehabilitation.

Legal Issues Presented

1. Whether the incitement offence should be classified within category 1 (penetrative sexual activity) or category 3 ("other sexual activity") for sentencing purposes.
2. Whether the custodial sentence imposed was unduly lenient given the nature and multiplicity of offences.
3. Whether it was appropriate to suspend the custodial sentence considering the offender’s risk and prospects of rehabilitation.

Arguments of the Parties

Solicitor General's Arguments

• The incitement offence should be classified as category 1 for harm, with a starting custodial sentence of five years, as the incitement related to penetrative sexual activity.
• The custodial term of 12 months was substantially too short and should have been longer than two years, making suspension inappropriate.
• The multiplicity and seriousness of the offences warranted a starting point of approximately four years' custody before reductions.

Defendant's Arguments

• The sentencing judge was correct to classify the incitement offence as category 3A, not category 1.
• A suspended sentence order was appropriate given the offender’s mitigating factors, including good character, low risk, and prospects for rehabilitation.
• The Sexual Harm Prevention Order and other ancillary orders adequately mitigate risk.
• Even if the sentence was lenient, it was not unduly lenient under the relevant legislation.

Table of Precedents Cited

Court's Reasoning and Analysis

The court began by addressing the classification of the incitement offence. It agreed with the sentencing judge and the precedents cited that the offence fell within category 3 ("other sexual activity") rather than category 1, as no penetrative sexual activity occurred. The court acknowledged the prosecution’s initial argument but found it unsustainable in light of binding authorities.

Regarding the length of the custodial sentence, the court accepted that the starting point of 15 months identified by the sentencing judge was unduly lenient. However, it rejected the Solicitor General’s suggested starting point of four years, concluding instead that a starting point of approximately 30 months was appropriate given the multiplicity and seriousness of the offences.

The court then considered whether suspension of the sentence was appropriate. It found no error in principle in the sentencing judge’s decision to suspend the sentence, given the offender’s low risk, strong mitigation, and active engagement in rehabilitation. The court also took into account the significant restrictions imposed by ancillary orders and the exceptional circumstances of the Covid-19 pandemic, which increased the burden of custodial sentences.

Ultimately, the court determined that after applying a discount for guilty pleas, the appropriate custodial term was two years, which could be suspended in the circumstances.

Holding and Implications

The court granted leave for the Solicitor General to refer the sentence and allowed the application to the extent of substituting the custodial term of 12 months with a custodial term of 24 months. The sentence remains suspended. All other orders made by the sentencing judge remain unchanged.

Holding: The original custodial term was unduly lenient and is increased to 24 months, suspended for 24 months.

Implications: The decision directly affects the sentence length imposed on the offender but does not alter the suspended nature of the sentence or ancillary orders. No new precedent was established beyond reaffirming existing sentencing principles and the appropriateness of suspension in suitable cases, especially considering exceptional circumstances such as the Covid-19 pandemic.