S63. Trespass with intent to commit a sexual offence

Date Updated: January 2012
Title: Sexual Offences
Offence: Trespass with intent to commit a sexual offence
Legislation: Sexual Offences Act 2003 - S63
Commencement date: 1/05/2004
Mode of Trial: Either Way
Statutory Limitations & Maximum Penalty:

• 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.

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

• Offender aware that he or she is suffering from a sexually transmitted infection (where the intended offence would have involved penile penetration)
• Targeting of a vulnerable victim
• Significant impact on persons present in the premises

Mitigating:

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

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: The intention is to commit rape or an assault by penetration  

Starting points: 4 years custody  
Sentencing ranges: 3 - 7 years custody

Type/nature of activity: The intended sexual offence is other than rape or assault by penetration  

Starting points: 2 years custody  
Sentencing ranges: 1 - 4 years custody

Relevant Sentencing Case Law

R v Moulding [2010] EWCA Crim 1690 D 31, 5 previous convictions none for sexual offences. Guilty plea to two counts of S63. In the early hours of the morning he was found in the bedroom of his neighbours 14 year old daughter masturbating. He put his hands over her face and ran off. V's mother discovered that she had D's semen in her hair. The telephone had been unplugged. The victim's family relationships suffered. D denied the offences were sexually motivated, denied unplugging the phone and denied assaulting V. The PSR indicated he had a high level of risk. The psychiatric report said D had a depressive type disorder, schizophrenia, harmful use of psychoactive substances, and a personality disorder. D posed a medium risk of harm but did not represent a significant risk of serious harm to the public. HELD: Extended sentence of 8 years (made up of 4 years custody and 4 extended licence) not 10 years (6 and 4).

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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