R v Stuart Martin Shaw

This is a renewed application for leave to appeal against sentence following refusal by the Single Judge.

On 14 March 2025, in the Crown Court at Bournemouth, the applicant, who is now 46 years old, was sentenced by HHJ Pawson KC to a total of 4 years 4 months' imprisonment for attempted sexual offences against what he believed to be a 12-year-old girl but was in fact a decoy social media profile.

That was the sentence imposed on the lead offence, count 3, attempting to incite a child to engage in sexual activity, the underlying offence being section 8 of the Sexual Offences Act 2003. There was a concurrent sentence of 12 months' imprisonment on count 1, attempted sexual communication with a child, the underlying offence being section 15 of the 2003 Act, and a sentence of 14 months' imprisonment on count 2, attempting to cause a child to watch a sexual act, the underlying offence being section 12 of the 2003 Act.

The applicant was entitled to full credit of one-third for his guilty pleas which had been indicated at the first opportunity in the magistrates' court. It follows that the judge's sentence before credit for plea was 6 years 6 months' imprisonment.

We are grateful to Mr Robinson for his written and oral submissions, particularly as he appears this morningpro bono in the best traditions of the Bar.

The offences arose from a course of online communication by the applicant with a decoy social media profile given the name "Lily Jones", legitimately operated by a member of a paedophile hunting group. Lily Jones gave her age as 12 years in the course of the conversation and responded in an impulsively naive non-committal and child-like fashion when communicating with the applicant.

The exchanges began over Facebook Messenger and progressed to WhatsApp. The applicant was quick to turn the conversation in a sexual direction. He repeatedly asked for pictures of Lily's genitals and chest (count 1). He also sent her a picture of an erect penis and a picture of a man masturbating (count 2).

In the lead offence, count 3, the applicant encouraged Lily to masturbate herself and told her to chat to him while she was doing so. He described how she should penetrate her vagina with her finger. When Lily purported reluctantly to acquiesce in this the applicant reassured her that it was normal for girls of her age and that he had seen a 15-year-old girl masturbate herself. Despite her protestations that it was uncomfortable he explained how to lubricate herself. He also asked her to video the activity.

The sexual communications spanned a 3-week period from 31 January to 20 February 2023. By that time the applicant's home address had been identified and the police had been informed. The applicant was arrested at his home address on 20 February 2023. He gave a "no comment" interview but indicated his guilty pleas at the first hearing in the magistrates' court when the case was sent to the Crown Court.

The applicant had no recent convictions and no previous convictions of a sexual nature. There was a character reference from his father and the applicant had written the remorseful letter himself to the judge.

There was a pre-sentence report. Although the applicant accepted responsibility for the offences, he distanced himself from them by saying he had little recollection of his actions because he had been drinking heavily and using crack cocaine and cannabis which affected his memory and behaviour. He did remember sending a video of himself. He denied having any sexual interest in children and said he found the offences disgusting and was deeply sorry for what he had done.

The assessment of the probation officer was that the applicant would not have been able to commit the offences without a sexual interest in children. The messages did not read as though they had been written by someone who was heavily intoxicated. He had at one stage told Lily to "delete the messages to stay safe", which indicated that he was considering the consequences of his actions in a sober state of mind.

It was submitted to the judge on the applicant's behalf that a downward adjustment of the sentence was necessary because the offences were attempts only and because the offending was rather short lived. The WhatsApp chat appeared to have taken place over a single day. He had made no attempt to meet the child decoy. He had used his real name, phone number and Facebook account. To an extent he had desisted voluntarily. Although he had been arrested and interviewed in February 2023, he had not been charged until July 2024.

In his sentencing remarks the judge said it was evident that the applicant had searched for young porn videos. When talking to Lily, the applicant told her to delete the conversation in an attempt to cover his tracks. He purported to Lily that he had been hacked, which the judge described as calculating rather than simply a drunken mistake. There were three offences. These were all aggravating features.

Applying the relevant Sentencing Council guideline for the underlying offence, section 8 of the 2003 Act, the applicant was inciting penetration of the girl's vagina. That made it level 2 harm. In terms of culpability, the images were sent unsolicited and there was a low-level element of grooming.

It was not disputed that the offences in count 3 fell within category 2A of the guideline, with a starting point of 8 years and a range of 5 to 10 years. The judge noted that no harm actually resulted as there was in fact no 12-year-old child. The judge quoted from and applied the guideline at Step 1 in the following terms:

Applying this part of the guideline, the judge made a very small reduction of 6 months from 8 years to 7½ years.

The judge turned to the mitigating features to be found in the pre-sentence report and in the reference from the applicant's father and his own letter to the court. The applicant had shown remorse. He had suffered from anxiety and depression following the loss of contact with his own daughter which had led to his descent into heavy drinking. The judge bore in mind what had been said by this Court about the adverse impact of prison overcrowding. The judge noted that the applicant had no relevant previous convictions. There was an element of delay. The applicant had referred himself in the interim to agencies such as the Lucy Faithful Foundation.

That mitigation enabled the judge to come down from 7½ years to 6½ years, which with full credit of one-third for plea produced a sentence of 4 years 4 months. A sexual harm prevention order was made in appropriate terms.

In helpful and focused submissions Mr Robinson argues that the judge was wrong to take a starting point of 8 years. He points out that the underlying offence was “inciting” rather than “causing” a child to engage in sexual activity, although both those alternatives appeared in the particulars of offence. It was an attempt only, because no actual child was incited - there was no child who was in fact groomed. The offence was short-lived and was manifestly out of character.

Mr Robinson submits that in the particular circumstances of this case the judge should have started towards the bottom of the range for a category 2A offence, only 5 to 6 years, before reducing the sentence further by 12 months (as the judge did) for the applicant's mitigation. Mr Robinson submits that this would have resulted in a sentence between 32 and 40 months. He submits that in this way there would have been proper recognition that the underlying offence was a "conduct” crime of inciting sexual activity rather than a "result” crime of causing sexual activity. In support of the latter proposition Mr Robinson referred in his grounds of appeal to the commentary in the Criminal Law Review on the leading case of R v Reed [2021] EWCA Crim 572: see [2022] Crim LR 56.

We have considered these submissions carefully but we agree with the Single Judge that they give rise to no arguable ground of appeal. There was no dispute before the judge, or before us, that this offending was properly placed in category 2A under the relevant Sentencing Council guideline. There was category 2 harm because the applicant incited what he believed to be a 12-year-old girl to penetrate her own vagina. It was high culpability level A because there was an element of grooming but, more particularly, because the applicant incited the victim to film herself masturbating and therefore to record a sexual image. The judge applied the guideline in making only a very small reduction for the fact the victim was a decoy. The applicant had not desisted voluntarily at an early stage.

The sentence had to take account of all three offences. As the judge noted, the applicant had taken steps to cover up what he had done by telling the decoy to delete the phone records. The judge was well aware that the offending took place over a single day and that the applicant was intoxicated but there were also signs that the applicant had control of himself to a considerable extent.

For all these reasons, it is not arguable that this sentence was manifestly excessive or in any way wrong in principle. The renewed application for leave is therefore refused.