S62. Committing an offence with intent to commit a sexual offence

Date Updated: January 2012
Title: Sexual Offences
Offence: Committing an offence with intent to commit a sexual offence
Legislation: Sexual Offences Act 2003 - S62
Commencement date: 1/05/2004
Mode of Trial: If the offence is kidnapping or false imprisonment indictable only, otherwise either way
Statutory Limitations & Maximum Penalty:

• If the offence involves kidnapping or false imprisonment - life; otherwise on Indictment - 10 years
• Summary Conviction - 6 months imprisonment and/or statutory maximum fine

Culpability & Harm

The sentences for public protection must be considered in all cases. They are designed to ensure that sexual offenders are not released into the community if they present a significant risk of serious harm. Within any indeterminate sentence, the minimum term will generally be half the appropriate determinate sentence. The starting points will be relevant, therefore, to the process of fixing any minimum term that may be necessary.

In a case where no substantive sexual offence has in fact been committed, the main dimension of seriousness will be the offender's intention - the more serious the offence intended, the higher the offender's culpability.

The harm to the victim in such cases will invariably be less than that resulting from a completed offence, although the risk to which the victim has been put is always a relevant factor.

In some cases, where the offender has come quite close to fulfilling his or her intention, the victim may have been put in considerable fear, and physical injury to the victim is a possible feature.

In addition to the generic aggravating factors identified in the Council guideline on seriousness, the main factors determining the seriousness of a preparatory offence are:

• the seriousness of the intended offence (which will affect both the offender's culpability and the degree of risk to which the victim has been exposed);
• the degree to which the offence was planned;
• the determination of the offender;
• how close the offender came to success;
• the reason why the offender did not succeed, i.e. whether it was a change of mind or whether someone or something prevented the offender from continuing; and
• any physical or psychological injury suffered by the victim.

The starting point should be commensurate with that for the preparatory offence actually committed, with an enhancement to reflect the nature and severity of the intended sexual offence. 

Aggravating & Mitigating Factors

Aggravating

• Use of drugs, alcohol or other substance to facilitate the offence
• Offender aware that he or she is suffering from a sexually transmitted infection (where the intended offence would have involved penile penetration)

Mitigating:

• Offender decides of his or her own volition, not to proceed with the intended offence
• Incident of brief duration

Relevant Sentencing Council Guideline (if any)

1. Guidelines effective for offences sentenced on or after the 14th May 2007.
2. The starting points are for an adult offender, of previous good character who was convicted after trial.

Type/nature of activity: Any offence committed with intent to commit a sexual offence, e.g. assault (see item 4 of 'Factors to take into consideration' above)

Starting points and sentencing ranges: The starting point and sentencing range should be commensurate with that for the preliminary offence actually committed, but with an enhancement to reflect the intention to commit a sexual offence. The enhancement will need to be varied depending on the nature and seriousness of the intended sexual offence, but 2 years is suggested as a suitable enhancement where the intent was to commit rape or an assault by penetration.

Relevant Sentencing Case Law

Some assistance is provided by two cases that predate the guidelines.

R v Wisniewski [2005] 2 Cr App R (S) 39 D pleaded guilty to two counts of battery with intent to commit a sexual offence. Both were women he stopped in the street at night, there was a week between them. The first woman he lifted over a wall but she struggled free. The second he approached saying 'you and me sex' he then dragged her into a churchyard and forced her to the ground. He was laying on top of her when a passer by came and he ran off. The Judge sentenced him on the basis the intent in the second incident was to rape. HELD: Both were at night. No weapons were used or blows struck and the indecency was limited. The second victim was deeply upset. 18 months for count 1 not 2 years, consecutive to 3 and a half not 5.  The court went onto to say in relation to battery with intent relevant factors were the method and degree of force used, the nature and extent of the indecency intended and perpetrated, the degree of vulnerability of and harm to the victim, the duration and general circumstances of the attack, including the time, day and place where it occurred and the level of risk posed by the offender to the public. The good character of the defendant will offer only limited mitigation.  Inconsequence of the maximum sentence of 10 years compared with life to rape, save where a great deal of violence is used, the level of sentence for battery with intent will generally be lower than the appropriate sentence for rape.

R v Royle [2005] 2 Cr App R (S) 76 - D 38 previous convictions as a juvenile for indecent assault and ABH (which appeared to be sexually motivated) pleaded guilty to s62. He stopped his car by a 19 year old girl who was cycling home late at night and forced her in. He made her remove her trousers. V was so scared she jumped from the car and was dragged by it. She suffered bruising and abrasions. A psychiatric report said D denied much of the allegation and minimised his responsibility and there was a high risk of reoffending. HELD: This was a violent kidnapping with a clear intent to commit a serious sexual offence. A significant discount should be given for the early guilty plea. 7 years extended sentence, made up of 5 years custody and 2 years extended, Not 9 years made of 6 and 3.

Ancillary Orders 

• Notification (S83 to 96 Sexual Offences Act 2003)
• Sexual Offences Prevention Order (S104 Sexual Offences Act 2003)
• Where the offence is one specified for barring and the defendant is aged 18 or over he or she is automatically barred from engaging in regulated activity with children and with vulnerable adults. (Safeguarding Vulnerable Groups Act 2006). 

Consider Also 

• Dangerous Offender provisions apply. Sentences for public protection must be considered.

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