Payne, R. v

Factual and Procedural Background

The Appellant pleaded guilty to two offences under the Criminal Attempts Act 1981: attempting to meet a child under 16 following grooming, and attempting to engage in sexual communication with a child. The offences arose from communications with an undercover police officer posing as a 14-year-old boy named "James". The Appellant initiated contact via Grindr and later Snapchat, arranged to meet "James" at a hotel, and was arrested upon arrival. A search of the Appellant's hotel room revealed items including a form describing sexual acts, cable ties, scissors, and condoms. The Appellant accepted a basis of plea acknowledging intent to meet and possible sexual activity, but denied intent to use the items found. The Appellant was sentenced to 12 months' immediate custody for the first offence and six months' concurrent custody for the second. The Appellant appealed the sentence with leave, arguing the sentencing judge erred in not suspending the sentence in light of personal mitigation.

Legal Issues Presented

1. Whether the sentencing judge was correct to refuse suspension of the custodial sentence despite the Appellant's personal mitigation and low risk of re-offending.
2. Whether the sentencing judge adequately explained the reasons for imposing immediate custody contrary to the probation officer’s recommendation.

Arguments of the Parties

Appellant's Arguments

• The sentencing judge failed to provide sufficient explanation for why only immediate custody was appropriate.
• The judge did not adequately address or justify the decision to depart from the probation officer’s recommendation for a community-based order.
• Given the Appellant’s personal mitigation, low risk of re-offending, and rehabilitation efforts, suspension of the custodial sentence was warranted.

Table of Precedents Cited

No precedents were cited in the provided opinion.

Court's Reasoning and Analysis

The court acknowledged the sentencing judge correctly identified the offence categories, starting points, and sentencing guidelines applicable to the offences. The judge recognized the Appellant’s personal mitigation, including a detailed psychological report diagnosing Autistic Spectrum Disorder and evidence of good character and rehabilitation efforts. However, the sentencing judge concluded that only immediate custody could achieve appropriate punishment, without sufficiently explaining why alternatives were rejected, especially given the probation report’s recommendation for a community-based order. The appellate court found this lack of explanation problematic, particularly in a borderline case where suspension of sentence is a viable option. The court noted that two guideline factors supporting suspension were present: realistic prospect of rehabilitation and strong personal mitigation. The judge’s reasoning did not convincingly exclude suspension, and the offences, while serious, were not categorically preclusive of suspended sentences. Consequently, the court held that the sentencing judge erred in ruling out suspension and imposed suspended sentences of the same duration with rehabilitation requirements, allowing immediate release due to time already served.

Holding and Implications

The court QUASHED the sentences of immediate custody imposed on the Appellant and substituted them with suspended sentences of the same length: six months suspended for the first count and 12 months suspended for the second count, each suspended for 12 months with a rehabilitation activity requirement of up to 30 days. The Appellant was entitled to immediate release due to time served. The decision underscores the importance of sentencing judges providing clear reasons when departing from probation recommendations, especially in borderline cases involving suspension of custody. No new precedent was established; the ruling focused on ensuring proper exercise of sentencing discretion in light of mitigation and rehabilitation prospects.