R v Colin Turner

The appellant is now 63. On 13 September 2024 in the Crown Court at Newcastle upon Tyne, he was convicted of one offence of arranging or facilitating the commission off a child sex offence, contrary to section 14(1) of the Sexual Offences Act 2003.

On 8 November 2024, he was sentenced by the trial judge (Mr Recorder David Gorden) to 33 months' imprisonment. He appeals against that sentence with leave of the single judge.

"J" was an authorised undercover operative. He created a profile on the website "Fabguys", a platform for gay men to find other local gay men. To access the site a user must identify their age, the minimum age requirement being 18. “J” stated that he was 20.

On 31 March 2023, “J” logged on to “Fabguys”. At 9.22 he received a message from the appellant using the profile "Ref 1". The appellant sent “J” his telephone number and they exchanged text messages. The appellant provided “J” with details of a KIK account. The appellant's KIK username was "GNE09".

The pair continued their conversation through KIK. The appellant sent an image of himself facing the camera. The appellant indicated that he could have “J” over. He also told “J” about the things he was interested in sexually. “J” told the appellant that he was 14 years old, not 20, as his “Fabguys’s” profile had stated. There was an image of a 14-year-old boy on “J”'s KIK account. After being told “J”'s age the appellant said: "Good. I'm looking forward to meeting you."

The appellant asked to meet “J” in person, and the necessary arrangements were made. The appellant said: "So you want fucked. I’m 7.5 thick mind, and OK, just change into shorts, nothing else. I pull straight down and suck on your cock." The appellant then said he was on his way.

The appellant drove to the centre of Newcastle. At 11.37 DC Neill attended Thornton Street in Newcastle and arrested the appellant as he waited for “J” and seized his mobile phone.

As noted above, the appellant was convicted by the jury following a trial.

In clear and cogent sentencing remarks, the Recorder set out the facts. He had specific regard to the relevant Sentencing Guidelines, namely those for sexual activity with a child. He said that in terms of harm (actual, intended or foreseen) this was a category 1 case because it involved the contemplation of penetration of the anus of a 14-year-old boy. As to culpability, he said that the disparity between the appellant's age and that of his intended victim might suggest that culpability was category A, but save for that, culpability would be category B.

This mattered for the reasons that the Recorder explained. A category 1A offence has a recommended starting point of 5 years' custody with a range of 4 to 10 years, whilst a category 1B offence has a starting point of 1 year and a maximum recommended sentence of 2 years' imprisonment.

The Recorder noted that the appellant had no previous convictions, but said that in the circumstances of this particular case that counted for little by way of mitigation. He referred to the appellant's physical ailments and his depression which were referred to in the report before the court. He said he had taken those into account.

As to the sentence itself, the judge identified a figure between the starting points of category 1A and 1B, namely one of 3 years. He made a modest adjustment because this was a decoy case and concluded that the appropriate sentence was 33 months. He did not undertake any other exercise in respect of aggravating or mitigating factors. That appears to be because he did not consider that there were any of any significance.

The first ground of appeal is that the learned Recorder failed to mitigate the sentence as a result of the appellant's lack of previous convictions. The second ground is something of a catch-all, complaining that the learned Recorder did not reflect other features of mitigation. Those are all set out in Ms Temple-Mabe's Sentencing Note and repeated in her helpful advice that we have seen for the purposes of this appeal.

The Recorder’s decision to use what might be called a "blended" starting point from the Sentencing Guidelines of 3 years is not in issue. Neither is the discount of 3 months to reflect the fact that this was a decoy case. Although the judge did say that a troubling feature of this case was that the appellant actually got into his car and travelled a significant distance, fully expecting to have sex with a 14-year-old boy, it seems to us that this was reflected in the starting point taken from the Guidelines and was not identified as an additional aggravating feature. So the only question for us is whether there should have been a further discount in the sentence by reason of the points of mitigation raised on behalf of the appellant.

For a section 14 offence the sentencing judge must have regard to the offence that would have been committed by the appellant. In this case, that was sexual activity with a child, contrary to section 9 of the Sexual Offences Act. The absence of previous convictions is the first in the non-exhaustive list of mitigating factors in the Sentencing Guidelines for section 9. The guideline in full says this:

That passage is also reflected in a later reference to another mitigating factor, namely "positive character and/or exemplary conduct". The footnote in the Guidelines in respect of that factor makes it clear that "previous good character/exemplary conduct is different from having no previous convictions." Again, for the specific offence relating to section 9 of the Sexual Offences Act, it is said that positive character does not generally attract any mitigation.

It seems to us therefore that the Recorder may have erroneously followed that later part of the Guideline when he refused to mitigate the sentence because of the absence of previous convictions. He did not refer to the earlier part of the guideline which said expressly that first-time offenders will receive a mitigated sentence. In our view, that was an error. Accordingly, we consider that a discount from the 33 months should have been made for the appellant's lack of previous convictions.

Although Ms Temple-Mabe set out a number of factors which she said were mitigating factors which the Recorder should have taken into account, we are not persuaded that that is a fair categorisation of those factors. Properly analysed, those other factors are not really mitigating factors at all. Some are factors which are not present in this case but which, if they had been, would have made matters worse for the appellant. Some would be covered by any reduction in sentence due to the lack of previous convictions. So in our view, the Recorder was entitled to disregard them for the purposes of sentencing.

The factors are said to include (1) the absence of any other evidence of an interest in sexual activity with children; (2) the lack of any further offending; (3) the absence of any evidence that the appellant had set out to meet children online; (4) the absence of any evidence of predatory behaviour; (5) grooming; (6) abuse of trust or (7) exploitation.

On our analysis, factors (1), (3), (4), (5) and (7) might be said to ignore the specific offending in this case, but are at most aggravating factors that are not present, rather than being themselves being mitigating factors. Their absence does not give rise to any entitlement to a further reduction in the sentence. Factor (2), and perhaps factors (4) to (7) as well, add nothing to the mitigation provided by the absence of previous convictions.

Ms Temple-Mabe suggested that there should have been a discount for the opportunistic nature of the offence. We do not accept that as a fair description of this offence. The appellant drove a long way in the expectation of having anal sex with a child. In any event, the Recorder presided over the trial and was therefore best able to form a concluded view about the nature of the offence.

The fact that both the Probation Service and the psychologist’s report indicated that the appellant posed a low risk of reoffending was not a separate mitigating factor, again it seems to us to be the absence of an aggravating factor.

Finally, it is suggested that the appellant's physical and mental ill-health should have been reflected in the total sentence. We have carefully read the reports. However, it seems to us that in general terms those ailments are sadly all too typical in working men coming towards their retirement age. There is nothing in them that, in our view, gives rise to any significant mitigation.

Accordingly, we consider that the one error of principle made by the Recorder was his failure to follow the Guideline and make a reduction in the sentence to reflect the appellant's lack of previous convictions. We would identify the further reduction in the amount of 4 months. That would have the effect of reducing the sentence in this case from 33 months to 29 months. Although, on the face of it, such a modest reduction might be criticised as "tinkering", we would disagree. Failure to effect a reduction in the sentence to reflect the absence of previous convictions was a failure to follow the Guideline. It was therefore an error of principle and requires to be rectified.

In all those circumstances, we quash the term of 33 months in this case and replace it with a term of 29 months. To that limited extent, this appeal against sentence is allowed.