R v Damian Payne [2025] EWCA Crim 766

WARNING: reporting restrictions may apply to the contents transcribed in this document, particularly if the case concerned a sexual offence or involved a child. Reporting restrictions prohibit the publication of the applicable information to the public or any section of the public, in writing, in a broadcast or by means of the internet, including social media. Anyone who receives a copy of this transcript is responsible in law for making sure that applicable restrictions are not breached. A person who breaches a reporting restriction is liable to a fine and/or imprisonment. For guidance on whether reporting restrictions apply, and to what information, ask at the court office or take legal advice.This Transcript is Crown Copyright.  It may not be reproduced in whole or in part other than in accordance with relevant licence or with the express consent of the Authority.  All rights are reserved.[2025] EWCA Crim 766Venue Royal Courts of JusticeStrandLondonWC2A 2LLDate Friday, 23 May 2025
Before
LORD JUSTICE FRASERMR JUSTICE HILLIARDMR JUSTICE CONSTABLE
Between
REXCrownV
Between
DAMIAN PAYNE__________Computer Aided Transcript of Epiq Europe Ltd,Lower Ground Floor, 46 Chancery Lane, London, WC2A 1JETel No: 020 7404 1400; Email: rcj@epiqglobal.co.uk (Official Shorthand Writers to the Court)_________MR M PHILLIPS appeared for Appellant_________APPROVED J U D G M E N T
[1]MR JUSTICE CONSTABLE: The appellant pleaded guilty to one count of attempting to meet a child under 16 following grooming, contrary to section 1(1) of the Criminal Attempts Act 1981, for which the appellant was sentenced to 12 months' immediate custody, and one count of attempting to engage in sexual communication with a child, contrary to section 1(1) of the Criminal Attempts Act 1981 for which the appellant was sentenced to six months' imprisonment concurrent.[2]The appellant appeals with leave of the single judge, contending that the judge was wrong not to suspend the sentence in light of the appellant's personal mitigation. We are grateful to Mr Phillips of counsel for his helpful and efficient submissions. The facts[3]The index offences involved an undercover police officer purporting to be a 14-year-old boy named "James". Communication between the appellant and "James" began at 17.50 on 5 March 2024 via Grindr. The appellant's profile on Grindr showed him as 38 years of age. The appellant initiated a conversation with "James" and asked what "James"’ interests were. "James" replied:
"Just chilling and gaming"
. The conversation subsequently moved to Snapchat where "James" identified his age. The appellant stated that he was 39 years of age, "So three times your age nearly." The appellant asked for a picture and a picture was sent consistent with the stated age of "James". The appellant subsequently stated, amongst other things:
"You'd get me into so much trouble."
The appellant then asked:
"What are you actually after, what have you done?"
To which "James" stated, "not a lot" and asked the appellant what he had done.[4]After further communications involving some sexual content, the appellant told "James" that he was in Leeds that night at a hotel and said:
"My biggest issue is you are under age so could be a lot of trouble."
The appellant then stated:
"I don't want to do the wrong thing because we are horny, I'm just anxious about getting caught."
However, notwithstanding his reservations the appellant thereafter arranged to meet "James" at that evening in the reception area of the hotel. Upon his arrival at 9.11 pm, just over three hours after the communication began, the appellant was arrested and during transportation to custody stated:
"I have been stupid."
[5]The appellant's hotel room was subsequently searched by the police and a rucksack was found with a form describing a number of sexual acts, cable ties, scissors and a pack of condoms.[6]The appellant submitted a basis of plea which signified that he accepted that he intended to meet the boy at the hotel and that there was then a possibility of engaging in sexual acts with him and that would depend, in the appellant's expectation, on the boy's presentation (to use the language of the basis of plea). The basis of plea, accepted by the prosecution, was that the appellant never intended to use the equipment that he had in the hotel room, namely the scissors, the cable ties and the consent form. The pre-sentence report[7]The author of the pre-sentence report (‘PSR’) states that Mr Payne was an extremely honest person in interview and that in the time that had elapsed since the offence, nearly a year, he had clearly spent some time trying to understand why the offence had occurred. The appellant stated that in hindsight he should have stuck to his first response and blocked him immediately and ended the conversation. He also stated that if "James" had not been so close in proximity he does not think he would have continued the conversation or arranged to meet him on another occasion. The appellant stated that he usually looks for men from 20 to 60, depending on the day, and that he would never look for anyone under 18 and denied ever accessing child pornography or searching specifically for children.[8]The author of the report characterised the appellant's description of his conduct as a perfect storm of circumstances. He was upset and frustrated at work. His usual friends were unavailable to meet. "James" was the only person who had responded to his message and him being in such close proximity at the time.[9]When discussing the impact on the victim, the appellant fully understood that if the encounter had been real it would have been a huge abuse of trust and that the long term impact on the victim could also be huge in terms of them blaming themselves or the abuser and this then impacting on the victim's future relationships and feelings of safety.[10]The appellant was assessed by the statistical tool "OGRS" as low risk of re-offending. The Risk of Serious Recidivism Tool ("RSR") also assessed him as a low risk of serious re-offending. In regards specifically to sexual re-offending, the author of the PSR completed the tool "OSP/c" and "OSP/i" which indicated the risk of sexual re-offending in regards to both contact and internet offences as being low for both categories. The author stated that there was no evidence to suggest that there was a medium or high risk a re-offending at this stage, given the stability in Mr Payne's life and the fear and realisation of the seriousness of his actions.[11]Notwithstanding all these specific assessments concluding that the risk of re-offending was low, the author suggested that the appellant posed a medium risk of harm to children, specifically post-pubescent male children aged 13 to 16. This medium risk of harm, it seems to us, was the product of a low risk of re-offending set against the fact that the impact of any such re-offending would be significant. The author went on to note the time that had elapsed since the offence with no further concerning behaviour.[12]The PSR also indicated that since his arrest the appellant had been supporting himself from his savings and had been focusing on his mental health and giving back to the community. He has spent time travelling and he volunteers for a community kitchen on one or two days per week and a nature reserve on one day a week. Both placements were made aware of his arrest. Ultimately, the report noted again the low risk of re-offending and recommended a community-based order for a minimum 12 months with a rehabilitation activity requirement for up to 30 days. The report also identified the appellant's suitability for unpaid work. The sentence[13]The judge initially and appropriately identified the correct categorisation of offending, the starting points and ranges in relation to the two offences and this was not in dispute. For attempting to meet up following sexual grooming the maximum sentence is 10 years' imprisonment. This was a Category 3 offence with a starting point of 18 months and a range of one year to two-and-a-half years' custody. For sexual communication with a child, the maximum sentence is two years. It was accepted by the parties that this was a Category 2 harm case, as none of the Category 1 factors were present. It was a culpability A offence as there had been the solicitation of an image, albeit non-sexual image.[14]A Category A2 offence has a starting point of one year with a range of a high level community order to 18 months' custody. As the sentencing

judge recognised, the guideline states:

"In cases of attempts where an offender tries to communicate with a child victim who does not exist, the court should identify the category of harm on the basis of the sexual activity the offender intended, and then apply a downward adjustment at step two to reflect the fact that no or lesser harm has actually resulted. In such cases 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."
[15]The judge expressly recognised the content of the material in support of the appellant's personal mitigation, including the pre-sentence report. He made clear in addition that he had considered with some care the report of Mr Donagh, a detailed 21-page report which diagnosed the appellant with Autistic Spectrum Disorder which Mr Donagh typified not as a disorder as such but rather a condition. Mr Donagh also noted a history of anxiety, amongst other things. We have also read that report.[16]The judge also noted the material presented to the court from other individuals, including the appellant's parents and all of these individuals, as the judge described, conveyed without any demur their high opinion of the appellant as an individual on a number of levels and in a number of different contexts and settings. The judge recognised expressly, as was the case, that the appellant was an individual of previous positive good character. He also reflected information provided by Angela Munro, a Cognitive Behavioural Psychotherapist and took account of the excellent progress the appellant had been making in addressing matters that had troubled him in the past.[17]The judge made reference to the guidelines for the imposition of community and custodial sentences, stating that he had considered all of the applicable criteria. The judge then concluded that this was a case in which the appropriate punishment could only be achieved by an immediate custodial sentence. He then proceeded to impose the sentence of 12 months which we have already identified. The appeal[18]Mr Phillips argues that the sentencing judge failed to explain why only a prison sentence would do, or why he was not following the recommendations of the probation officer.[19]We accept that there is force in this submission. Although the judge expressly referred himself to the guidelines for the imposition of community and custodial sentences, it is difficult to discern the reason which led the judge to rule out any sentence other than one of immediate custody. In particular, whilst it is obviously always open to a sentencing judge to reach a conclusion which diverges from the recommendation of a pre-sentence report, it is helpful, unless it is obvious, if a judge explains why they are not following the recommendation in such a report. These reasons need not be extensive or comprehensive but a defendant is entitled to understand the reasons for the sentence. This is particularly so in a borderline case where the decision required is whether to impose immediate custody or not. Given the low risk of re-offending, the evaluation of the attitude of the appellant and the manner in which he had already taken significant steps to address and indeed atone for his conduct, the recommendation of the pre-sentence report had obvious merit.[20]At least two of the factors set out in the guideline as indicating that it may be appropriate to suspend the sentence were present in this case, namely the realistic prospect of rehabilitation and the appellant's strong personal mitigation. In circumstances where the risk of re-offending was low, and there was no history of poor compliance with court orders, the only factor from the guideline indicating that it would not be appropriate to suspend the custodial sentence relied on by the judge was that appropriate punishment “could only be achieved by immediate custody”. We do not agree. Obviously there will be many circumstances in which these offences will necessarily lead to an immediate custodial sentence but we do not regard that the offences for which the appellant was convicted, which merited a 12-month custodial sentence, are of such a nature that suspension of that custodial sentence could never be warranted, irrespective of the extent of the offender's personal mitigation, prospects of rehabilitation or risk of re-offending.[21]We therefore consider that the sentencing judge did fall into error in determining, in essence, that he was precluded from suspending the sentence in order to achieve the appropriate sentence for this offence. There is nothing objectionable in the terms of custody themselves, namely the sentence of six months' custody on count 1 and 12 months on count 2. However, because they are sentences of immediate custody on each count, they must be quashed. In their place we order sentences of the same duration, i.e. six months on count 1 and 12 months on count 2, but these sentences are to be suspended for a period of 12 months and a rehabilitation activity requirement of up to 30 days is to be imposed. In light of the length of time the appellant has already served in custody, we do not impose any unpaid work as a further penal element. Therefore the appellant is entitled to be released immediately. Epiq Europe Ltd hereby certify that the above is an accurate and complete record of the proceedings or part thereof. Lower Ground Floor, 46 Chancery Lane, London, WC2A 1JE22. Tel No: 020 7404 140023. Email: rcj@epiqglobal.co.uk