R v Lee Bergstrom

The appellant appeals, with leave granted by the single judge, against the sentence imposed on him on 10 January 2025 in the Crown Court at Chelmsford for three offences, to which he pleaded guilty in the same court at a plea and trial preparation hearing on 16 December 2024, having indicated in the magistrates' court that he would plead guilty. Those offences were:

The appellant, who was 36 when he was sentenced, had been convicted of 13 previous offences committed between 2008 and 2022. In 2008 the appellant caused a child under 16 to watch a sexual act and he made and distributed indecent images of children. Whilst on bail for these offences, in 2009 he caused or incited a child under 13 to engage in penetrative sexual activity on two occasions. For those offences he was sentenced to 4½ years' imprisonment. He was also given a sexual offences prevention order.

The appellant breached that order in 2015 and again in 2015/2016. Also in 2015 he attempted to incite a child under 16 to engage in penetrative sexual activity and to watch a sexual act. On 20 April 2016 he was given an extended sentence of 68 months’ imprisonment, consisting of a custodial term of 32 months and a 3-year extended licence, and he was also made subject to a sexual harm prevention order which prohibited him, amongst other things, from attempting to have contact with a female child under the age of 16.

Upon his release in January 2020, the appellant committed the offences of engaging in sexual communication with a child and breaching the sexual harm prevention order. On 18 August 2020, he received a sentence of 3 years' imprisonment for those offences.

Upon release from that sentence, in April 2022 he committed offences of attempting to engage in sexual communication with a child under 16 and attempting to breach the sexual harm prevention order. For those offences, he was sentenced to 40 months' imprisonment on 26 October 2022.

The appellant was released in August 2024 and in October 2024 he committed the present offences by using his XBox to contact and engage in sexual communications over the course of six days with someone who claimed to be a 13-year-old girl and who also claimed that her uncle had made her do "everything" (which in the context meant sexual intercourse) and that she was in the care system. The appellant asked her for images of her feet for his sexual gratification. He also suggested that she recruit a younger girl so that she could charge men to watch them "do stuff to each other". Finally, he encouraged her to engage in penetrative sexual activity with him, asking, "Out of interest, how much do you charge?" and "When do you want to have sex?" On the next day he asked again, twice, how much the girl would charge, but then said that he would not be able to travel to meet her. The appellant committed these offences whilst on licence. He was recalled to prison until 4 August 2026.

A pre-sentence report dating from 2022 assessed the appellant as presenting a very high risk of serious harm towards female children between the ages of 10 and 15 years. Also before the court was a letter from the appellant and a character reference from the college where he had been studying prior to his arrest. The judge placed count 2 into category 1A in the sentencing guideline for offences under section 10 of the Sexual Offences Act 2003, with a starting point of 5 years' imprisonment and a range from 4 to 10 years. The judge placed count 3 in category 2A in the sentencing guideline for offences under section 15A of the Sexual Offences Act 2003, with a starting point of 1 year's imprisonment. The judge placed count 1 in category 1A of the sentencing guideline for offences of breach of a sexual harm prevention order, with a starting point of 3 years' imprisonment. The judge took account of the appellant's previous convictions and also of the principle of totality. He concluded that a total sentence of 9 years' imprisonment would have been appropriate if the appellant had been convicted after a trial. He reduced this to 6 years by reason of the appellant's guilty plea.

No issue is taken on this appeal with the judge's finding of dangerousnessor the imposition of an extended sentence.

The grounds of appeal are that: the judge's starting point for sentence was too high, especially bearing in mind that the offending was short-lived and an attempt, with no actual harm resulting; the judge failed to make a downward adjustment to the sentence to reflect the fact that no real child had been involved; that the appellant had desisted from his behaviour; the judge gave insufficient credit for the appellant's remorse, his prospects in education and attempts at self-rehabilitation; and the judge failed to give sufficient consideration to the principle of totality in the overall sentencing exercise.

No complaint is made about the judge's categorisation of the offences, but it is submitted, in effect, that the offences, in particular count 2, were not as serious as the judge appears to have regarded them within the relevant category. In particular, the sentencing guideline for inciting a child to commit a sexual act provides as follows:

The present case is not one of those identified in the guideline as examples of cases where only a very small reduction is appropriate. Rather, it is submitted that this was a case in which the appellant voluntarily desisted and that a significant discount ought to have been allowed. The judge acknowledged that there had to be some discount, but then said:

It is undoubtedly the case that the appellant's appalling record of sexual offending was an aggravating factor which necessitated a very significant increase in his sentence. He had committed child sexual offences in 2008, 2009, 2015, 2020 and 2022. A series of long sentences had not deterred him from returning to this offending following his release. He had been convicted of breaching, or attempting to breach, a court order on four occasions. He committed the present offences within 2 to 3 months of being released from prison. Moreover, against that background, the appellant's professed remorse and his attempts at rehabilitation carried little, if any, weight. The same is true of his educational prospects and other mitigation

The judge's reference to a starting point of 5 years in the passage which we have cited could be said to indicate that he did not in fact allow any discount for the fact that the appellant had voluntarily desisted, although, on the other hand, the judge did say that there had to be a discount. However, we do not consider that this appeal is to be decided by interpreting the judge's sentencing remarks. At the end of the day, we have to consider the total sentence imposed and whether it was manifestly excessive, having regard to the totality principle, which requires that the total sentence should “reflect all of the offending behaviour with reference to overall harm and culpability, together with the aggravating and mitigating factors relating to the offences and those personal to the offender; and be just and proportionate.”

We accept that the fact that the appellant voluntarily desisted meant that there had to be a significant downward adjustment to the sentence. It is also relevant in that context that no actual harm was shown to be caused. On the other hand, those factors were significantly outweighed by the aggravating factors, namely the appellant's previous convictions and the fact that he was acting in breach of a sexual harm prevention order. It follows that the judge was entitled to impose a sentence which, before the reduction for the appellant's guilty plea, was significantly in excess of the 5-year starting point in the sentencing guideline for offences under section 10 of the Sexual Offences Act 2003. However, we consider that the judge's notional sentence of 9 years did not give sufficient weight to the consideration that the appellant voluntarily desisted. We consider that a notional sentence of 7½ years would have struck the appropriate balance between the factors indicating a reduction or an increase in sentence.

Accordingly, we quash the sentence on count 2 and impose instead an extended sentence of 11 years, consisting of a custodial term of 5 years and an extended licence period of 6 years. To that extent, this appeal is allowed.