BFZ, R. v

Factual and Procedural Background

The case concerns an individual referred to as the Offender, anonymised as 'BFZ' to protect the identity of the victims due to familial connections. The Offender was convicted on 11 April 2024 at the Crown Court at Gloucester of four offences of sexual assault of a child under the age of 13, contrary to section 7(1) of the Sexual Offences Act 2003. The offences involved two children, referred to as C1 and C2, who are the Offender's children. The Offender was sentenced on 9 May 2024 to four concurrent suspended sentences of two years' imprisonment each, with requirements including 300 hours of unpaid work and up to 40 days of rehabilitation activity, and ordered to pay prosecution costs of £3,500.

The Offender, aged 50 at the time of sentencing, had no previous convictions. The offences arose from conduct occurring when the children were between the ages of 6 and 10. The relationship between the Offender and his spouse, referred to as 'W', had broken down in 2012. Allegations emerged following the discovery of a notebook with sexualised entries and police interviews of the children in 2013. There was a significant delay in prosecution, with the case not charged until 2023, and trial held in 2024.

The indictment charged specific incidents of sexual assault, and the jury convicted on these counts only. Victim personal statements from both children described significant psychological harm and ongoing effects. The sentencing judge considered the evidence, guidelines, and the Offender's denial of the offences in imposing the suspended sentences.

Legal Issues Presented

1. Whether the sentences imposed on the Offender were unduly lenient under section 36 of the Criminal Justice Act 1988.
2. Whether the harm caused by the offences, particularly psychological harm to the victims, was properly categorised under the relevant Sentencing Council guidelines.
3. Whether the sentencing judge erred in suspending the sentences rather than imposing immediate custody.
4. The proper application of sentencing principles in cases involving multiple offences against multiple victims without multiple-incident counts.
5. The impact of significant delay in prosecution on the appropriateness of sentence.

Arguments of the Parties

Solicitor General's Arguments

• The sentences were unduly lenient and should be increased.
• The harm caused, especially to victim C2, amounted to severe psychological harm justifying a higher harm category under the Sentencing Council guidelines.
• Repeated offending against two victims required an uplift beyond the category range for a single offence.
• Aggravating factors such as grooming behaviour and offending in the family home diminished the weight of the Offender's good character.
• Concurrent sentences were permissible if the total sentence was just and proportionate, which should have exceeded two years' custody.
• Appropriate punishment in this case could only be achieved by immediate custody.

Offender's Arguments

• The judge was correct to categorise harm as category 3A, not higher, based on his direct observation of the victims' evidence.
• The judge's sentencing evaluation was reasonable and informed by the relevant guidelines.
• The late stage at which the Solicitor General sought to vary the application to argue for a higher harm category was unfair and unjust.
• There was no opportunity to investigate further evidence such as medical records related to victim C2.
• The significant delay in prosecution contributed to trauma and should be considered in mitigation.
• Caution is required before relying on victim personal statements alone to establish severe psychological harm.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Canavan [1997] EWCA Crim 1773	Sentencing must be based on counts convicted; evidence of repeated offending cannot be used to increase sentence unless charged or admitted.	The court confirmed the sentencing judge correctly limited sentence to the four specific offences convicted.
Stewart [2016] EWCA Crim 2238	The Solicitor General is not bound by concessions made in the Crown Court if rationale for departure is explained.	The Solicitor General’s late variation of the harm categorisation was considered but ultimately rejected as unfair and unjust.
Attorney-General's Reference No 4 of 1989 [1990] 1 WLR 41	Definition of an unduly lenient sentence: one outside the range a reasonable judge could consider appropriate.	The court applied this test to determine whether the sentence was unduly lenient and concluded it was not.
Chall [2019] 4 WLR 102	Victim personal statements can establish the presence of psychological harm.	The court acknowledged this principle but emphasized caution in relying solely on such statements without corroboration.

Court's Reasoning and Analysis

The court carefully reviewed the sentencing judge's application of the Sentencing Council guidelines, the categorisation of harm and culpability, and the overall sentence imposed. It emphasised that sentencing must be based strictly on the offences of which the Offender was convicted, rejecting any reliance on uncharged or unadmitted repeated offending. The judge’s evaluation that the harm did not reach category 1 or 2 was supported by his direct observation of the victims’ evidence and was not clearly erroneous.

The court rejected the Solicitor General’s late attempt to argue for a higher harm category, noting procedural fairness and the lack of opportunity to investigate further evidence. It held that the guidelines do not provide for a sliding scale of harm between significant and severe psychological harm, and the judge’s categorical assessment was appropriate.

The court accepted that an uplift was justified due to two victims but found that the total sentence of two years' imprisonment was within a reasonable range, especially given the sentencing judge’s experience and the context of the offences. It noted that sentencing is not mechanistic and requires evaluative judgment.

Regarding suspension, the court recognised the judge’s discretion and the appropriateness of suspension given the passage of time since the offences and the availability of rehabilitation requirements. The only factor insufficiently weighted was the significant and unreasonable delay in prosecution, which justified some mitigation but did not render the sentence unduly lenient.

Holding and Implications

The court REFUSED LEAVE TO REFER the sentences as unduly lenient. It held that although the sentence was lenient, it was not outside the range of reasonable sentencing decisions a judge could make. The suspension of the sentence was within the sentencing judge’s discretion and was not unreasonable.

The direct consequence is that the Offender’s suspended sentences remain in place without increase or variation. No new precedent was established, and the decision reinforces the principle that sentencing must adhere strictly to the facts of conviction and relevant guidelines, with appellate courts showing deference to sentencing judges’ evaluative judgments, especially where the judge has seen and heard the victims.