NI Court of Appeal: Man convicted of attempted sexual communication with a child succeeds in appeal

About this case:

• Citation:
  [2026] NICA 2
• Judgment:
  External link
• Court:
  NI Court of Appeal
• Judge:
  Lady Chief Justice Siobhan Keegan

Delivering judgment for the Court of Appeal, Lady Chief Justice Siobhan Keegan emphasised that “The outcome we have reached in this case does not detract in any way from how seriously the courts take this type of pernicious offending. Indeed, the appellant has served two months’ imprisonment which is a deterrent in itself.”

Mr Stephen Campbell appeared for the appellant instructed by Paul Campbell Solicitors, and Mr Mark O’Connor appeared for the Crown instructed by the Public Prosecution Service

Background

On 13 July 2024, the appellant engaged in sexual communication via Facebook with a decoy profile operated by a paedophile hunter group, ‘Child Online Safety Team’.

Having been informed by the decoy that she was 14 years of age, the appellant sent a photograph of his penis to the decoy and asked her to comment upon it.

The incident was reported to Cheshire police who linked the Facebook profile to the appellant’s address. Following his arrest, he was interviewed and immediately admitted his offending.

Following a guilty plea, the appellant was convicted of one count of attempted sexual communication with a child under 16 contrary to article 3(1) of the Criminal Attempts and Conspiracy (Northern Ireland) Order 1983 and article 22A of the Sexual Offences (Northern Ireland) Order 2008.

The appellant received an immediate custodial sentence of 12 months’ imprisonment split equally between custody and licence, along with a five-year Sexual Offences Prevention Order (SOPO) and various ancillary orders.

An expedited appeal against the severity of the appellant’s sentence came before the Court of Appeal, on grounds that the judge erred in concluding that a community-based sentence could not be considered in his case, and erred in choosing a starting point of 18 months before reduction for his guilty plea.

The Court of Appeal

Lady Chief Justice Keegan firstly considered the probation report which set out the antecedents of the appellant, noting that he had no previous convictions, had a stable relationship with his parents and had been employed in a bakery for seven years, with his employer confirming that his employment remained open and that the appellant was a “model employee”.

The Lady Chief Justice highlighted that the report assessed the appellant as having a low risk of reoffending and referred to victim awareness and regret on part of the appellant, and opined that the offence did not represent a pattern of behaviour.

The court then considered the single “guideline” case discussed by the judge, R v Watson [2022] NICA 71, which involved five offences comprising attempted sexual communication with a child, attempted causing a child to watch sexual activity, attempted inciting the taking of an indecent image of a child and attempted inciting the distribution of an indecent image of a child.

The Lady Chief Justice highlighted paragraphs 13 and 14 of that decision, observing that same clearly stated that for the specific offending in that case, a custodial sentence was warranted.

The court continued: “The transcript of the sentencing remarks in this case does not make any factual distinction. Thus, it may be, that there was an interpretation by the judge that in this case the custody threshold was automatically passed, and that the same immediate sentence was warranted. That approach is erroneous, as each case depends on its own facts.”

The court explained that Watson involved a much greater level of offending with attracted a maximum penalty of 14 years’ imprisonment, and that a community option was not available in that case due to the disability of the appellant.

The Lady Chief Justice observed that the issue of whether the custody threshold is met in a particular case is governed by article 5(2) of the Criminal Justice (Northern Ireland) Order 2008, which provides that “A court must not pass a custodial sentence on an offender unless it is of the opinion that the offence was so serious that neither a fine alone nor a community sentence can be justified.”

The court further highlighted that even if the custody threshold is met, a further exercise is required on part of a sentencing judge when the decision to impose a short custodial sentence is arrived at, noting that “Whether a community-based option is appropriate will depend on the facts of the case and whether there is compelling evidence that rehabilitation can be achieved.”

The Lady Chief Justice clarified that whilst sexual communication with a child is very serious and requires proper punishment, there may be instances where a community option is merited and will enhance public protection. 

Outlining that factors favouring rehabilitation will be set out in the probation report and other materials received by the court, those factors including a clear record, “one-off” offending, remorse, victim empathy, evidence of stability in the community by way of employment and family support, the court proceeded to provide guidance for sentencing judges.

The court advised inter alia that Watson was fact specific and paragraphs 13 and 14 should not be treated as a rigid rule, and that in cases involving sexual activity with a child, consideration of a non-custodial option will properly arise if a sentence of 12 months or less is contemplated or the circumstances demand it per R v Pacyno [2024] NICA 3.

Having regard to the mitigating factors favouring the appellant, the court agreed with the appellant that the chosen starting point of 18 months’ imprisonment, reduced to 12 months for his guilty plea, was manifestly excessive.

The court considered that a sentence of no more than eight months’ imprisonment would have been appropriate after a guilty plea, and that in circumstances where the case could only have attracted a custodial sentence under 12 months, it was incumbent upon the judge to consider whether a community-based option was viable. 

Finding that the sentencing judge was obliged to consider an enhanced combination order and/or other community disposals and to explain why such a disposal was not appropriate, the Lady Chief Justice remarked that “if the judge had taken some further time to undertake the necessary analysis, he would have reflected the strengths of probation supervision in his ultimate sentence.”

Conclusion

Accordingly, the Court of Appeal allowed the appeal and substituted a two-year probation order for the custodial sentence that was imposed. The SOPO remained in place, with ancillary orders to follow.

The King v Sebastian Kasak [2026] NICA 2