R v Peter Underwood

The facts

The facts are not in dispute for present purposes and can be taken from the Final Reference on behalf of the Solicitor General. In summary, the offender was in online communication with what he believed to be a 13-year-old child although it was in fact a decoy run by an online group of "paedophile hunters". He engaged in sexual conversation with this decoy profile over several weeks, inciting her to digitally penetrate herself and solicited indecent images from her.

The offender made contact with her on 23 December 2022 via the private messenger function within Facebook using an alias. He tried to persuade her to send photographs of herself in the bath and made a number of references to wanting to see her in her school uniform. He suggested sending her images of him masturbating on several occasions but did not do so. Several times he made reference to the fact that someone of his age should not be in contact with someone as young as her and that he could get into trouble. The conversation was still ongoing on 9 January 2023. By this time the relevant organisation had identified the location of the offender via his IP address. They contacted another volunteer group based in Cornwall. They went to the offender's home address to confirm he was the person in the images he had sent. Once they were sure they had correctly identified him, they arranged what they called a "sting" on 11 January 2023. They went to the offender's home address, located and detained him, live streaming the incident on Facebook and called the police. Police attended and arrested the offender.

Sentencing framework

The maximum sentence for an offence of this kind is 14 years' imprisonment. The Sentencing Council has issued a Definitive Guideline on Sexual Activity with a Child/Causing or Inciting a Child to Engage in Sexual Activity. Category 1 harm cases are where there is either penetration of vagina or anus using the body or an object or penile penetration of the mouth in either case by or of the victim. Culpability is assessed as follows. There are culpability A factors to which we will return and culpability B is where the factors in category A are not present. If a case falls within category 1A, the guideline recommends a starting point of 5 years' custody with a category range of 4 to 10 years. If an offence falls within category 1B the guideline recommends a starting point of 1 year's custody with a category range from a high-level community order up to 2 years' custody.

The guideline also states that in section 10 cases, that is section 10 of the 2003 Act , where activity is incited but does not take place, the court should identify the category harm on the basis of the sexual activity the offender intended and then apply a downward adjustment 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 in 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 within the category range will usually be appropriate. No additional reduction should be made for the fact that the offending is an attempt.

"The situation here was wholly different to the situation which is all too common in criminal proceedings. Offences are committed, they are reported promptly to the police who investigate them with reasonable expedition. The investigation concludes with evidence available to justify charging of the offender. Then, many months, sometimes years, pass before the offender is charged. That type of delay often will result in some reduction in the eventual sentence, particularly in cases where the offender pleads guilty. We observe that the reduction would be most unlikely to be as great as 25 per cent, particularly where the offences were serious, but some reduction would follow."

The offender had no previous convictions. There were no victim personal statements in this case. A pre-sentence report was prepared. This noted that the offender did not seek to excuse his behaviour, describing a long history of the use of social media and specifically chatrooms, which he says became addictive and included sites which were sexually explicit. He denied intentionally seeking out children. The report noted that the offender had expressed remorse and a degree of insight, in that he now accepts that, had these been real victims, the impact of this offending would have been profound and lifelong. The report said that as a result of his offending having come to light the offender had moved address and his relationship had ended. He was in secure employment although he had been recently diagnosed with COPD, which would inevitably worsen over time. He was assessed as being a medium risk of future non-contact offending and as posing a medium risk of serious harm.

Before the sentencing court, in written submissions, the prosecution placed the case into category A culpability because the offender had asked the victim to penetrate her own vagina with her fingers, and into category 1 in respect of harm because of the significant disparity in age and because there was a request of images albeit not sexual images. That was how the matter was put by the prosecution. It is common ground now before this Court that that was in error.

It was acknowledged that there was some delay in this case given that the offence had taken place in late 2022 and early 2023 but the offender had not been charged until May 2025. In passing sentence, the judge said that it was a great sadness the offender had lost his good character at the age of 60. He noted the fact that it was a decoy made very little difference as he was perfectly convinced when he was communicating that it was a 13 year old child. He noted that the offender had been open about the problems he faces and concluded that he did not believe for a moment that he has a sexual interest in children.

In mitigation the judge noted that there was genuine remorse. The offender had reached the age of 60 and had previously been of good character and 3 years had passed since his arrest for reasons endemic to the system.

Submissions on behalf of the Solicitor General

On behalf of the Solicitor General, Ms Hole submits that the total sentence imposed in this case was unduly lenient. It is acknowledged that the sentencing judge was right to place the case into category 1 in respect of the assessment of harm but she submits that the judge did not take sufficient account of the factors indicative of category A culpability and further, that he suspended the sentence without proper application of the Imposition Guideline and in circumstances where appropriate punishment can only be achieved by immediate custody.

When considering the assessment of culpability the judge had regard only to the factor that there was a significant disparity in age. In the present case the offender was 56 at the time of his offending and believed himself to be communicating with a child some 43 years younger. He also appreciated that he should not be chatting to that child. But submits Ms Hole, there was in truth a further factor indicative of category A culpability that sexual images of the victim were solicited. This is now a matter of agreement although it was not drawn to the judge's attention by the prosecution in the Crown Court. In this context Ms Hole reminds this Court that the Law Officers and this Court are not bound by a concession which is made by the prosecution (see R v Stewart [2016] EWCA Crim 2238 at [32 - 37] (Davis LJ)). She submits that images of the child in a bath plainly would have been sexual in nature.

"… usually the appropriate punishment will only be achieved by immediate custody, even when the victim is not a real child."

Submissions on behalf of the respondent

Mr Quaife fairly agrees with much of what has been said on behalf of the Solicitor General. First, he agrees this was a case which properly fell into category 1 in respect of harm. He agrees that there was a significant disparity of age and that there were sexual images solicited. Accordingly, he now accepts, although this was not the view of the sentencing judge, that this case fell into culpability category A. He therefore agrees that the starting point for a category 1A case is 5 years' custody with a range of 4 to 10 years. He nevertheless submits that the judge was entitled to go outside the category range in the particular circumstances of this case. He submits that is the only way in which justice could be done in this particular case. At the hearing before us he has submitted that the lower end of the category range should not be treated as some sort of "buffer".

Our assessment

In essence we accept the submissions which have been made on behalf of the Solicitor General. We have reached the conclusion that the sentence imposed in this case was unduly lenient. It needed to be well above the maximum sentence of 2 years' custody that is capable of being suspended as a matter of law. It is now common ground, and we would endorse this, that the substantive offence attempted in this case would have fallen into category 1A by reference to the Definitive Guideline. As we have mentioned, that recommends a starting point of 5 years' custody with a range of 4 to 10 years. A reduction to be made to reflect the fact that the child victim did not in fact exist could only be very small because the reason why the offence was not completed was not for reasons to do with the respondent. The judge was entitled to take into account such mitigation as there was, including the respondent's previous good character until he was around the age of 60 and the delay in these proceedings. Nevertheless, we consider that the notional sentence after trial could not have fallen below 4 years' custody in this case. After giving an appropriate discount for the guilty plea of 25 per cent, that would result in a sentence of 3 years' imprisonment.

Conclusion

For the reasons we have given, we grant the Solicitor General leave to refer this sentence to this Court under section 36 of the 1988 Act. On that Reference, we quash the sentence imposed by the Crown Court and substitute a sentence of 3 years' imprisonment. We make it clear that is a sentence of immediate custody.

LORD JUSTICE SINGH: Ms Hole, what is to happen next?

MS HOLE: My Lord, I understand the offender is now living in Northampton and I am told that the nearest custody suite to his home address will be the Northampton Criminal Justice Centre and that is 700 Pavillion Drive in Northampton. I understand that the offender is present in Court, and so I think there may be an application for some time for him to surrender.

MR QUAIFE: Would my Lords say midday tomorrow please?

LORD JUSTICE SINGH: We usually say 4.00 pm today.

MR QUAIFE: 4.00 pm today then.

LORD JUSTICE SINGH: Can you just check that is going to be realistic today.

MR QUAIFE: I checked earlier. I cannot say whether it will be realistic or not; we are beholden on the current train timetable.

LORD JUSTICE SINGH: I am reluctant to say midday tomorrow. I do not know if you want to take instructions from him.

MR QUAIFE: I will.

LORD JUSTICE SINGH: You can certainly have a moment (Pause) .

MR QUAIFE: 4.00 pm, my Lord.

LORD JUSTICE SINGH: We will so order. It will be the custody suite to which reference has been made on behalf of the Solicitor General in Northampton by 4.00 pm today. I know that the respondent is in Court today and he will appreciate the consequence if he does not surrender to custody by the due time.

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