Sentencing strict-liability rape of a child under 13: mitigation for reasonable belief of age/consent, deterrence within the guideline, and totality without double counting filming

1. Introduction

R v Lunn [2026] EWCA Crim 934 is a reference by the Attorney General under s.36 Criminal Justice Act 1988 contending that a Crown Court sentence was unduly lenient. The offender pleaded guilty to:

  • Count 1: rape of a child under 13, contrary to s.5 Sexual Offences Act 2003;
  • Count 2: assault by penetration of a child under 13, contrary to s.6 Sexual Offences Act 2003;
  • Count 3: taking an indecent photograph of a child, contrary to s.1 Protection of Children Act 1978.

A key feature of the case was that the offender advanced a disputed basis of plea. The sentencing judge therefore held a Newton hearing to determine critical facts bearing on sentence, including the offender’s asserted belief as to the victim’s age and the dynamics of the sexual activity.

The Court of Appeal also confirmed the continuing effect of the anonymity regime under the Sexual Offences (Amendment) Act 1992 (and expressly did not waive or lift it).

2. Summary of the judgment

The sentencing judge imposed a sentence for offenders of particular concern on count 1 of 4 years 6 months’ custody plus 1 year further licence, with concurrent sentences of 18 months (count 2) and 24 months (count 3).

The Court of Appeal refused leave to refer (i.e., declined to increase the sentence). It held, in substance, that:

  • On the judge’s findings after the Newton hearing, the case was materially atypical: the offender had a reasonable belief that the victim was 16 and was consenting (though consent is no defence to offences against a child under 13).
  • A notional 7-year term on count 1 (before guilty plea reduction) could not reasonably be criticised if count 1 stood alone.
  • The Court accepted that count 2 represented additional criminality which the sentencing remarks did not obviously reflect by any adjustment to the lead sentence (or through totality reasoning).
  • However, even if the overall sentence were arguably unduly lenient, it would not be by much; and the Court would not intervene merely to make minor adjustments in a sensitive and evaluative sentencing decision supported by cogent reasons.

3. Analysis

3.1 Precedents cited

The judgment does not cite prior appellate authorities by case name. Instead, it relies on:

  • The statutory framework (including s.36 Criminal Justice Act 1988 and the offences under the Sexual Offences Act 2003); and
  • The applicable Sentencing Council guidelines (expressed through categorisation, starting points, and ranges), alongside general sentencing principles such as deterrence, totality, and avoidance of double counting.

The Court also referred to “clear authority” about the need to protect children under 13, but did not identify that authority by citation.

3.2 Legal reasoning

(a) The function of the Newton hearing in fixing sentence-relevant facts

Because the offender pleaded guilty on a disputed basis, the judge conducted a Newton hearing to resolve disputes bearing directly on culpability. The judge’s findings included that:

  • The offender did not ask the victim’s age and assumed she was older (the judge found the assumption was reasonable);
  • The offender purchased alcohol intending to get the victim to leave, not to facilitate sexual contact with her;
  • The victim initiated the sexual activity; and
  • As a matter of fact, the offender believed the victim consented and she did consent, even though in law such “consent” is ineffective for a child under 13.

On an Attorney General’s Reference, those findings were treated as fixed: the Court proceeded on the basis that they “cannot be disturbed”.

(b) Sentencing a strict-liability offence: how “reasonable belief” and “consent” still matter

Offences under s.5 Sexual Offences Act 2003 (rape of a child under 13) are “absolute” in the sense that: consent is not a defence and mistake as to age is not a defence.

This case nevertheless confirms (and illustrates) a crucial sentencing distinction: facts that do not provide a defence may still substantially affect the evaluation of culpability and therefore the movement within (or down from) the guideline starting point and range.

The Court explicitly treated the offender’s reasonable belief (that the victim was 16 and consenting), together with the victim’s initiation (as found), as taking the case “far from the typical case” for which the count 1 starting point was designed.

(c) Deterrence and the guideline starting point

The Solicitor General argued that insufficient weight was given to deterrence. The Court’s response contains an important sentencing clarification: the need for deterrent sentences is, in a real sense, already “built into” the guideline’s categorisation and starting point.

That does not mean deterrence disappears; rather, it cautions against treating deterrence as a free-standing lever to resist mitigation in every case, regardless of atypical culpability features. The Court accepted that the sentencing judge had expressly acknowledged deterrence and the protective purpose of the law, while still being entitled to reflect the offender’s unusual state of mind (as factually found).

(d) Totality, additional criminality, and double counting (counts 2 and 3)

The Court separated the effect of counts 2 and 3 on the lead count:

  • Count 3 (filming/indecent image): the judge placed count 1 into the higher culpability category (A) because of filming. The Court cautioned that making a further “significant adjustment” for count 3 risked double counting (punishing the same feature twice).
  • Count 2 (digital penetration): although part of the same episode, it was “another serious offence” and constituted additional criminality beyond count 1. The Court agreed there was no clear sign that the sentencing judge adjusted the lead sentence to reflect count 2 (either by treating it as an aggravating feature of count 1 or by express totality reasoning).

The Court articulated two permissible routes to reflect this:

  1. treat count 2 as an aggravating feature of count 1 and increase the notional term; or
  2. address it later via the principle of totality (ensuring the overall sentence matches overall criminality).

Applying the first route, the Court indicated (hypothetically) that count 2 would justify an upward adjustment of about one year to the count 1 starting point, before then applying the significant downward adjustment reflecting atypical culpability and other mitigation.

(e) The s.36 “unduly lenient” threshold and restraint where any error is marginal

Even though the Court described the sentence (on one view) as “lenient” and noted the arguable absence of an adjustment for count 2, it refused to intervene. The reasoning reflects two linked propositions commonly engaged on s.36 references:

  • the appellate court’s role is not to resentence merely because it would have imposed a different sentence; and
  • where any arguable undue leniency would be small, and the sentencing judge gave cogent reasons in an evaluative exercise informed by live evidence, intervention may be inappropriate.

3.3 Impact

The decision is likely to be relied upon in three practical ways:

  1. Atypical culpability in s.5 cases: where a sentencing judge finds a genuinely reasonable belief that the child was older and consenting, that belief can justify a substantial downward adjustment from the guideline starting point, notwithstanding the offence’s strict-liability character.
  2. Deterrence is not an automatic override: courts may treat deterrence as incorporated in guideline starting points, and focus the remaining analysis on whether the case is typical or atypical when moving within the range.
  3. Structuring totality in multi-count sexual offending: if a non-lead count represents distinct additional criminality (here, penetration of a different kind), sentencing remarks should demonstrate how that additional criminality is reflected—while avoiding double counting where a feature (such as filming) has already driven guideline categorisation.

For Attorney General references, the judgment also signals a degree of restraint: even where the Court can identify a potential missing step in the totality analysis, it may still refuse leave where the gap is small and the overall sentence remains within a defensible range.

4. Complex concepts simplified

Newton hearing
A fact-finding hearing after a guilty plea where the parties dispute what happened in ways that affect sentence. The judge hears evidence and decides the disputed facts.
Strict/absolute offence (in this context)
For rape/penetration offences against a child under 13, the law does not allow a defence of consent or reasonable belief as to age. However, those matters can still affect sentencing by reducing culpability.
Guideline “starting point” and “range”
The starting point is the typical sentence for the offence in a given category, before adjustment for aggravating/mitigating factors and guilty plea. The range marks the usual sentencing boundary for that category.
Totality
The principle that the overall sentence must be just and proportionate to the whole offending behaviour across counts—neither artificially low nor crushing.
Double counting
Impermissibly punishing the same feature twice—for example, using filming to raise culpability category and then again increasing the sentence separately for the same filming.
Sentence for offenders of particular concern
A statutory sentence structure for certain serious offences requiring a custodial term followed by an additional licence period designed to manage risk on release.
ABE interview
“Achieving Best Evidence” interview: a recorded interview process for witnesses (often children) intended to capture evidence in a structured and safeguarded way.

5. Conclusion

R v Lunn [2026] EWCA Crim 934 illustrates how sentencing for the strict-liability offence of rape of a child under 13 can properly reflect atypical culpability findings—particularly a reasonable belief as to age and ostensible consent—without undermining the offence’s protective purpose. It also highlights careful totality methodology in multi-count sexual offending: avoid double counting where filming already affects culpability categorisation, but ensure distinct additional penetration is reflected either as an aggravating feature or within totality. Finally, the case underscores the appellate court’s restraint on Attorney General references where any arguable undue leniency is marginal and the sentencing judge’s evaluative reasoning is cogent and grounded in live fact-finding.