R v Kelvin Fielding

MRS JUSTICE CUTTS: On 12 December 2023 following guilty pleas in the Oxford Magistrates' Court, the appellant was committed for sentence to the Crown Court in respect of three offences of making indecent photographs of children, one offence of distributing an indecent photograph of a child and one of possession of an extreme pornographic image.

On 26 June 2024 following his trial in the Crown Court at Oxford the appellant was convicted of one offence of assault on an emergency worker and one offence of exposure. On 28 March 2025 following a trial in the same court, he was convicted of an offence of arranging or facilitating the commission of a child sexual offence.

On 8 September 2025 the appellant was sentenced in the Crown Court at Oxford. He was not sentenced by the trial judge who was unable to preside over the sentence. On that date he was sentenced to a total of six years and eight months' imprisonment made up in the following way: six years' imprisonment for arranging or facilitating the commission of a child sex offence, on the committal for sentence eight months' imprisonment for making indecent images of children in Category A, six months' imprisonment for a like offence involving images in Category B and for possession of the extreme pornographic image, and three months' imprisonment for each of making indecent images of children in Category C and distributing an image of the same category, all such sentences concurrent inter se and with the sentence of six years. Finally, three months' imprisonment for assault of an emergency worker concurrent with the other terms and eight months' imprisonment for the exposure offence consecutive. Ancillary orders were made.

He appeals the sentence on the exposure only with the leave of the single judge.

Given the narrow issue on the appeal, the facts can be briefly stated. The offences came to light as part of an undercover police operation. An undercover officer known as "Gary" set up a profile under the name "kinkydaddyUK" on the website Adult Friend Finder, uploaded a photograph of a child's underwear and waited to be approached.

On 21 November 2022 the appellant did so. Discussions developed around abusing and sharing a young girl. Gary posed as a 49-year-old man who was abusing his nine-year-old stepdaughter. It is unnecessary to specify the detail of those conversations. Suffice it to say that over time there were discussions of the two of them abusing the girl together, that abuse to involve oral, anal and vaginal penetration and ejaculation. A meeting was arranged for 9 December for that purpose. Gary sent a postcode for the meeting point at Bedford Railway Station. The appellant contacted Gary on 9 December to say he would not come as he did not trust him. It appears he became suspicious when Gary refused a video call the day before.

The appellant was arrested on 29 December 2022. The pornographic images were found on devices seized. They comprised four Category A videos involving children, 14 Category B images, 105 Category C images and an extreme pornographic image involving an adult woman. The Category A and B images included those of children as young as three years of age. In a Skype chat the appellant had distributed two Category C images to another man. The devices further showed search terms referring to teens and the rape of schoolgirls.

On 7 January 2024, two female officers attended the appellant's address to check his devices, as he was by then subject to notification requirements following his guilty pleas on the indecent image offences. Search terms were found and the appellant was arrested. He was seen to be trying to hide a laptop. When challenged he put his arms around the body of one of the officers and touched her bra straps. Shocked, she called out and the other officer escorted the appellant downstairs. He was permitted to use the bathroom to change his clothes, whereupon he dropped his shorts exposing himself to the officer. He told her that she "better look away" as he was not wearing any underwear.

The appellant was aged 65 years at the time of sentence. He had a number of convictions for offences of theft and road traffic offences between 1977 and 2012. Although not forthcoming at first, the appellant admitted to the author of the pre-sentence report that he was interested in discussing having sex with a child, but said he would not have done so. He said he became isolated in Covid and spent more time online where he began to speak to others about sexual matters. Through those contacts he was sent more extreme material. He was said by the author of the report to lack empathy. The author found him to pose a high risk of serious harm to children. No alternative to custody was proposed. A detailed psychological report concluded that the appellant was not a dangerous offender.

On the basis of that report and the appellant's age, the judge did not find the appellant dangerous. He described the offence of facilitating or arranging a child sex offence as the lead offence. Using the sentencing guideline for sexual activity with a child contrary to section 9 of the Sexual Offences Act 2003, the judge placed this offence within category 1A, affording a starting point of five years and a range of four to 10 years' imprisonment. He considered that the appropriate sentence was one of seven years' imprisonment. This he reduced by 12 months to reflect the fact that no child existed and that the appellant desisted and did not travel to Bedford. He imposed the sentences that we have set out for the indecent image offences concurrently.

The judge said that the exposure offence was the more serious of the two offences on that indictment which alleged exposure and assault of an emergency worker. He wrongly stated that there were no sentencing guidelines for exposure. He found the offence was aggravated by the fact that the appellant was under arrest at the time of the exposure. He came to a sentence of 12 months' imprisonment for that offence, which he reduced to eight months' imprisonment consecutive to the other terms imposed by reason of the appellant's guilty plea. In this the judge fell into error. The appellant was convicted of the exposure after a trial. It was the indecent images to which he had pleaded guilty. This was rightly brought to the judge's attention by Mr Simmons who represented the appellant at the sentencing hearing. The judge said that he was not going to change the sentence as it would be unfair to do so, it having been his mistake.

The appellant has not renewed his appeal against the sentence of six years' imprisonment for the offence of facilitating or arranging the commission of a child sex offence following refusal by the single judge. We consider that decision wise. The activity which was planned was the oral, vaginal and anal rape of a nine-year-old child by two men. In those circumstances, in our view both the prosecution in their sentencing note and the judge were wrong to have regard to the guideline for an offence contrary to section 9 of the Sexual Offences Act.

The sentencing guideline for arranging or facilitating the commission of a child sex offence states that the sentencer should refer to the guideline for the applicable substantive offence. The applicable substantive offence in this case was rape of a child under the age of 13 years, contrary to section 5 of the Act. This offence would at the very least have fallen into category 2A of that guideline with a starting point of 13 years and a range of 11 to 17 years' imprisonment. Seen in that context, the sentence of six years is far from manifestly excessive. Even taking the section 9 offence as the applicable guideline, the judge in our view was entitled to come to the sentence that he did.

The sole ground now advanced is that a sentence of eight months' imprisonment for the offence of exposure is manifestly excessive. The judge was wrong to say that there were no guidelines for the offence. There were no raised harm or culpability factors and the offence therefore falls within category 3 of the guideline. This has a starting point of a medium level community order and a range of a band A fine to a high level community order. Mr Simmons accepts that a community order was not feasible given the custodial sentences on the other matters. He further accepts that a consecutive sentence may have been justified but submits, at least in his written grounds, that in the context of this case the right course would have been to make the sentence concurrent to the others imposed. If consecutive, he submits, the sentence should have been considerably shorter than eight months' imprisonment.

In our view the offences of assault of an emergency worker and exposure had to be taken together, with the sentence on the exposure reflecting both offences. The sentence imposed on the assault offence was three months' imprisonment and no objection has rightly been taken on that. Moreover, the appellant had been released on bail following his arrest for the other offences. Officers were at his home to check that he was compliant with notification requirements imposed upon him following his guilty pleas to the indecent image offences. He was under arrest at the time that he behaved as he did to police officers. The judge was right in our view to see these as aggravating factors. In our judgment they took the offence out of the guideline and merited a custodial sentence.

That said we are persuaded that a sentence of eight months imprisonment was so far outside of the guideline as to be manifestly excessive. Taking into account the sentence on the assault and the principle of totality, a sentence in the region of three months' imprisonment in our judgment would have met the justice of the case. Whilst the sentence imposed was less than the appellant would otherwise have received if the offence of arranging sexual activity with a child had been correctly categorised, in our view the proper course is for the sentence for exposure to be reduced. We think it entirely right that the sentence should be consecutive to the other term imposed given that the appellant was on bail at the time of the offending. The resulting sentence of six years and three months' imprisonment for the totality of the offending is certainly not manifestly excessive in light of the advantage already afforded to the appellant by the wrong categorisation of the main offence within the guideline.

We give effect to these conclusions by quashing the sentence of eight months' imprisonment for the exposure offence and substituting a sentence of three months' imprisonment in its place. That will be consecutive to the other offences, resulting in an overall sentence of six years and three months' imprisonment. To that extent this appeal is allowed.