R v Colin Robson-Durrance

His Majesty's Solicitor General applies for leave under section 36 of the Criminal Justice Act 1988 ("the 1988 Act") to refer sentences to this court on the ground that they were unduly lenient.

The respondent was born on 17 August 1965 and was aged 59 at the date of sentence. On 14 July 2025 in the Crown Court at Leicester he pleaded guilty to three offences to which we shall return. On the same date he was sentenced by His Honour Judge Timothy Spencer KC as follows. Count 1 on the indictment was an offence of attempted sexual communication with a child. The sentence was 10 months' imprisonment suspended for two years. Count 2 was attempting to incite a child to engage in sexual activity. The sentence was two years' imprisonment suspended for two years. Count 3 was attempting to cause a child to watch a sexual act. The sentence was eight months' imprisonment suspended for two years. The sentences were made concurrent. The lead count was taken to be count 2 which was the most serious offence. That resulted in a total sentence of two years' imprisonment suspended for two years. An appropriate surcharge order was imposed. A Sexual Harm Prevention Order was made for a period of 10 years. An order was made for the forfeiture and destruction of a mobile phone. Since the offender had been convicted of an offence listed in schedule 3 to the Sexual Offences Act 2003, he was required to comply with the provisions of Part 2 of the Act, that is notification to the police, for a period of 10 years. Also since he had been convicted of an offence specified in the schedule to the Safeguarding Vulnerable Groups Act 2006 (Prescribed Criteria and Miscellaneous Provisions) Regulations 2009 the offender will or may be included in the relevant list by the Disclosure and Barring Service.

The facts can be taken from the Final Reference for present purposes. In summary, the offender engaged in sexual communications with a child decoy operated by a police officer. Believing the decoy to be a boy aged 13 he engaged in sexual communications, encouraged the decoy to masturbate and insert a finger into his bottom, solicited images and sent the decoy a video of himself masturbating.

In more detail, the facts are as follows. On 6 November 2024 the offender engaged a decoy purporting to be a 13-year-old boy called 'Jordan' on Snapchat. The offender sent a message: "Hey just looking at extending my network of gay friends ... do hope you don't mind ... I live in Loughborough." The offender stated he was over 50 and lived alone. He commented on Jordan's profile and referred to "liljord". Jordan replied explaining that it was because he was 13 years old.

The offender started asking Jordan about his sexuality, how he knew he was gay, whether he had met a guy yet and whether he had "done anything". Jordan replied stating he had "done bits" and when asked by the offender stated that he had given a hand job and a blow job. The offender followed up asking if Jordan had been sucked or just gave a blow job and whether he had swallowed.

Jordan talked about being at school. The offender encouraged him to masturbate in the toilets and told him to "have a wank and stick a finger up your bum before you cum". That was the subject of count 2.

On one occasion he told Jordan he owed him a wank in the toilets at school and that he should send him a picture when he was close, the inference being close to ejaculation. The offender asked explicit questions about Jordan's penis and whether he had started puberty.

The offender asked if Jordan would be willing to meet him for a burger and a laugh. He stated if Jordan got in the car and started stripping he would not stop him. He stated he would not pounce on Jordan or make the first move but if Jordan did it would be different. He stated if Jordan got his penis out he would find it hard to say no. He suggested meeting at McDonald's in Redhill.

The offender sent an image of a naked young adult and asked if Jordan looked like that, describing it as "something to help you wank". He asked for and was sent a picture of Jordan wearing a school uniform.

The offender sent an image of a cake depicting someone being masturbated. He also sent screen shots of gay porn websites with explicit images. The offender described masturbating in a field, in a church and when he was at school. He sent a video of himself masturbating with a commentary about coming and commenting "you could be licking that". He encouraged Jordan to view it in school. That was the subject of count 3. He asked if the video made Jordan get hard or want to lick it. The offender commented that meeting Jordan could get him into serious trouble and possible jail time. He stated he was going to bring Jordan back to his house but did not know if he still wanted to meet as he suspected it was a police officer speaking to him. The conversation ended on 14 November 2024.

The offender was arrested at home on 3 January 2025. A mobile phone was seized which had some images that matched the images shared in the chat with Jordan. He was interviewed on the same day and made admissions about the chat with Jordan. He accepted using the Snapchat account which he used to talk to people as he was isolated. He suggested, however, that he was trying to assist the 13-year-old in coming to terms with his sexuality and had offered to take him to an LGBT youth club. He stated he had been raped at an early age and he was looking out for Jordan's safety as he did not want him to be abused and wanted him to get professional help. He stated he had met people aged under 18 but nothing sexual had happened and he just met them to give them general advice. He stated he was not sexually active and claimed the sexual chat was "banter".

The offender had no previous convictions, cautions, reprimands or warnings. He first appeared before the Leicester Magistrates' Court on 13 May 2025 where he gave no indication of plea as such, although we shall return to this later.

The case was sent to the Crown Court for trial and the offender was remanded on conditional bail.

On 14 July 2025 he appeared before the Crown Court for the plea and trial preparation hearing and, as we have mentioned, entered guilty pleas on this occasion. The judge declined to order a pre-sentence report, indicating he could deal with the case the same day and would not be sending the offender to prison.

Prosecution counsel identified that the offence of inciting a child to engage in penetrative sexual activity had a starting point of five years on the relevant sentencing guideline, with a category range of four to 10 years. She also asked for time to draft an SHPO. The defence also asked for time, concerned that it might assist the offender to speak with probation due to an underlying mental health issue. Therefore the case was put back for the offender to speak to the Liaison and Diversion Officer who confirmed that the offender had an appointment for a community mental health assessment on 14 August 2025. However the judge declined to further adjourn the sentence.

In passing sentence the judge adopted the following approach. It was very sad and shameful that someone at the age of 59 should appear before the Crown Court for the first time in their life. The offender was contributing to and making himself part of the abuse of underage children which was why it had to be viewed so seriously. The offending happened at a low time in the offender's life, having recently lost his dog who was his closest companion. The offending was not isolated, it was extensive chat for days and involved penetrative sexual activity, albeit the judge described it as fairly low level. That, the judge recognised, provided a starting point of five years' custody.

Nevertheless the judge said that because there was no real child and no actual sexual activity, the starting point had to be staged downwards in accordance with authority from this court and the sentencing guideline, to which we will return.

There was mitigation, the judge said, in the offender's age, lack of previous convictions and the guilty plea such that the judge took a sentence at the bottom of the range. The judge took the sentence down to three years to reflect the "massive mitigation" in the case. The judge then gave one-third discount for the guilty pleas, bringing the sentence down to two years. This the judge described as "the magical sentence" which enabled him to suspend. The judge said: "This case in my judgment cries out for that sort of mercy". The judge was confident that the offender would never offend again. Accordingly, the sentences and orders which we have mentioned were imposed.

The maximum sentence for attempting to engage in sexual communications with a child is two years' imprisonment: see section 15A(3)(b) of the Sexual Offences Act 2003. The maximum sentence for attempting to cause a child to watch a sexual act is 10 years' imprisonment: see section 12(2)(b) of the same Act. The maximum sentence for attempting to cause or incite a child to engage in sexual activity is 14 years' imprisonment: see section 10(2) of the same Act.

There are relevant guidelines to which we must now turn in brief. The Sentencing Council's Guideline on Sexual Communication with a Child applies to offences sentenced on or after 1 July 2022 committed by offenders aged 18 and over. In respect of attempts, where an offender has tried to communicate with a child victim who does not in fact exist, the guideline states that the court should identify the category of harm on the basis of the sexual activity the offender intended, and then apply a downward adjustment at Step 2 to reflect the fact that no or lesser harm has actually resulted. In such cases only a very small reduction within the category range will usually be appropriate. No additional reduction should be made for the fact that the offending is an attempt.

Count 1 would fall within harm Category 1 as the offender sent sexual images to the decoy. The offence falls within culpability A as the offender solicited images. A Category 1A offence has a starting point of 18 months' custody with a range of nine months to two years.

The guideline on causing or inciting a child to engage in sexual activity applies to offences sentenced on or after 1 April 2014 committed by offenders aged 18 and over. The guideline states that in section 10 cases where activity is incited but does not take place the court should identify the category of harm on the basis of the sexual activity the offender intended and then apply a downward adjustment at Step 2 to reflect the fact that no or lesser harm actually resulted. The extent of downward adjustment will be specific to the facts of the case. Where an offender is only prevented by the police or others from carrying out the offence at a late stage or were attempts where a child victim does not exist and but for this fact the offender would have carried out the offence, only a very small reduction will usually be appropriate. Again, it is stated that no additional reduction should be made for the fact that the offending is only an attempt.

The guideline continues that where, for instance, an offender voluntarily desisted at an early stage, a larger reduction is likely to be appropriate potentially going outside the category range. In either instance it may be the case that a more severe sentence is imposed in a case where very serious sexual activity was intended but did not take place than in a case where relatively less serious sexual activity did take place. The sentence will then be subject to further adjustment for aggravating and mitigating features.

Count 2 would fall within harm Category 1 as the offender incited Jordan to penetrate his anus with his finger while masturbating. It would fall within Category A culpability as sexual images of the decoy were solicited and there was a significant disparity in age. There is no issue before us that a Category 1A offence attracts a starting point of five years' custody with a range of four to 10 years.

The guideline on causing a child to watch a sexual act applies to offences sentenced on or after 1 April 2014 committed by offenders aged 18 and over. Count 3 would fall within harm Category 2 as the offender sent a pornographic video to the decoy depicting him masturbating. They would fall within Category A culpability as there was a significant disparity in age and the decoy's purported age. A Category 2A offence has a starting point of two years' custody with a range of one to three years.

We are also reminded that the court needs to take account of the guideline on totality and the guideline on reduction in sentence for a guilty plea. Finally, there has been reference to the guideline on sentencing offenders with mental disorders.

On behalf of the Solicitor General, Miss Robertson submits that the sentence imposed in this case was unduly lenient in that:

In all the circumstances therefore, Miss Robertson submits that, even allowing for the reduction for guilty pleas and mitigation in this case, the sentence of two years' imprisonment suspended for two years did not by some margin reflect the seriousness of the offences.

At the hearing before us, Miss Robertson has emphasised that the central submission for the Solicitor General is that in truth the sentence, even after mitigation and even if full credit had been given for guilty pleas, could not reasonably have been as low as two years' imprisonment. Accordingly, it would not be capable in law of being suspended.

On behalf of the respondent, Miss Johnson submits that this court should give weight to the assessment of seriousness arrived at by an experienced judge, indeed the Resident Judge at Leicester Crown Court, and not simply substitute its own findings for his. She reminds this court that guidelines have always been described by this court as not being tramlines and allowance should be made for a judge's "feel" for the justice of the case. Miss Johnson reminds us of what the court said in R v Privett [2020] EWCA Crim 557, [2020] 2 Cr.App.R (S) 45, in particular at paragraph 67 in the judgment of the court given by Fulford LJ, the then Vice President of the Court of Appeal (Criminal Division). This sets out the two-stage approach to sentencing cases where there is no actual child, first to consider what the intended sexual activity was. In this case she submits that it was one single message which elevated this case to a category where the starting point would be five years' custody. That is the subject of count 2, the most serious offence and the lead count. She submits that the judge correctly concluded that, although it was penetrative activity that was being incited, it was relatively low level in the context of this offending.

The second stage is to consider and apply a downward adjustment to reflect the fact that

Further, she submits that the judge went on to consider the strong mitigation that she submits there was in this case:

Miss Johnson therefore submits it is not correct to say the judge had no information about the offender's mental health. She accepts that the court did not have a report in writing but she submits that it is unlikely that what could be said in writing if there had been an adjournment would have given the judge materially any greater information. There was a mental health officer in court who gave the relevant information to the judge having had access to the offender's medical records.

At the hearing before us, Miss Johnson has also informed us of what has happened subsequently. The respondent did attend the appointment that had been made for him on 14 August 2025. It had been assessed that he has complex needs and the case has been referred to a multi-disciplinary team which is due to meet in his absence but to discuss the next steps as to how to deal with his case.

Turning to the question of the credit given for guilty pleas, Miss Johnson submits that in the unusual circumstances of this case the judge was in fact entitled to and correct to give a full discount. She refers to the chronology of events in 2024 and 2025. In particular, she submits that it was made clear by solicitors acting on the offender's behalf that a guilty plea was likely to be entered upon receipt of the evidence of messages in a viewable format. We can see that from the Better Case Management form.

In all the circumstances therefore, Miss Johnson submits that having regard to the experience of the sentencing judge, this was not an unduly lenient sentence. Alternatively, and in any event, Miss Johnson invites this court to exercise its discretion not to increase the sentence even if it concludes that it was unduly lenient having regard to the unusual circumstances of this particular case.

We remind ourselves of the fundamental principles which govern the exercise of the power in section 36 of the 1988 Act in the seminal case of Attorney General's Reference (No 4 of 1989) [1990] 90 Cr.App.R 366 at page 371, Lord Lane, CJ, said that the first thing to be observed is that it is implicit in the section that the court may only increase sentences which it concludes were unduly lenient. It cannot have been the intention of Parliament to subject defendants to the risk of having their sentences increased, with all the anxiety that this naturally gives rise to, merely because in the opinion of this court the sentence was less than this court would have imposed. A sentence is unduly lenient where it falls outside the range of sentences which the judge applying his mind to all relevant factors could reasonably consider appropriate. Lord Lane went on to say that sentencing is an art rather than a science, that leniency is not in itself a vice, and the proposition that mercy should season justice is one which is as soundly based in law as it is in literature. The second thing that Lord Lane emphasised in that passage was that, even where this court considers that a sentence was unduly lenient, it still retains a discretion as to whether to exercise its powers. The court did not attempt an exhaustive definition of the circumstances in which this court might refuse to increase an unduly lenient sentence, but it mentioned an obvious instance where in the light of events since the court below it appears either that the sentence can be justified or that to increase it would be unfair to the offender or detrimental to others.

We have rightly been reminded by Miss Robertson of what this court said in Attorney General Reference No 132 of 2001 (Bryn Dorian Johnson) [2002] EWCA Crim 1418, [2003] 1 Cr.App.R (S) 41, in which Potter LJ said at paragraph 24 that the purposes of the system of Attorney General's Reference include the allaying of widespread concern at what may appear to be an unduly lenient sentence and the preservation of public confidence in cases where a judge appears to have departed to a substantial extent from the norms of sentencing generally applied by the courts in cases of a particular type.

Finally, we should make reference to the well-known principles which govern section 36 of the 1988 Act. They can be found summarised for example in Attorney General's Reference (Egan) [2022] EWCA Crim 1751, [2023] 2 Cr.App.R (S) 16 at [3] where the court said:

We should also make reference to what the court said at paragraph 51 of Egan that double jeopardy can sometimes play a part in this court's consideration of the factors which it must take into account in deciding whether to increase a sentence or not, referring to Attorney General's Reference Nos 14 and 15 of 2006 (French and Webster) [2007] 1 Cr.App.R (S) [60] in the judgment of Lord Phillips, CJ. In Egan this court said that it did not follow that because a sentence was suspended in the court below, that this court is not able to increase a sentence to one which could not be suspended if that is ultimately the right conclusion to which the court should come.

Applying those principles to the present case, we have reached the conclusion that with all due respect to the sentencing judge the sentence ultimately passed was unduly lenient.

The most serious offence was count 2. The guideline is clear: the starting point is five years' imprisonment with a range of four to 10 years. We also bear in mind that in accordance with Privett the judge was entitled to adjust the notional sentence after trial downwards to reflect the fact that there was no real victim. We bear in mind that there was considerable mitigation in this case, even if the state of evidence before the court was not entirely satisfactory, in particular because there was no medical report as such but there was, as we have been informed by Miss Johnson, effectively an oral report by an appropriate professional relating to community health.

Further, we accept that the judge was entitled to give weight to the fact that the respondent had reached the age of 59 without any previous criminal activity. We acknowledge that this was a very experienced judge and was well-placed to form the judgment that the respondent would not offend again. We are prepared to accept that generous though it might otherwise have seemed, the credit of one-third was justifiable in the circumstances of this case having regard in particular to what the solicitors acting for the offender had indicated on the BCM form.

The real difficulty, as it seems to us, is that even acknowledging all those factors it is difficult to see how the notional sentence after trial could reasonably have been as low as three years' imprisonment. That would have been required in order for a sentence after full credit for a plea of two years to be justifiable. Accordingly, we have reached the conclusion that this sentence was unduly lenient.

Despite that, we now have to exercise this court's discretion in the circumstances which exist today. We are satisfied at the invitation of the respondent offender that in the very unusual circumstances of this case this court should not exercise its discretion now to increase the sentence. We bear in mind that this was a suspended sentence and therefore to some extent the offender will have begun to lead his life on the supposition that he is not going to be sent to prison immediately. We also bear in mind what he has done since the date of sentence: he attended the appointment on 14 August 2025, and he has been assessed to have complex needs which needs to be investigated further by the multi-disciplinary team. We bear in mind the history of this case and accept Miss Johnson's submission that he can be regarded as a vulnerable person. We accept, of course, what Miss Robertson has said that the prison estate can generally be expected to deal adequately with those with vulnerabilities, including those with mental health issues. Nevertheless, in the particular circumstances of this case we have reached the conclusion that it would not be the right course to take in the exercise of the court's discretion.

Very importantly, we would emphasize that the offender is of course subject to a suspended sentence order. He will know therefore the consequences that will follow should he breach the terms of that suspended sentence and in particular should he commit any further offence the sentence of custody would be activated at that point. We also bear in mind that other appropriate orders were made to protect the public, including the Sexual Harm Prevention Order.

We grant the Solicitor General leave to refer the sentences to this court under section 36 of the 1988 Act, but for the reasons we have indicated we do not alter the sentence imposed below.