MJB, R. v

Factual and Procedural Background

This opinion concerns an application by His Majesty's Solicitor General for leave to refer sentences to the court under section 36 of the Criminal Justice Act 1988 on the ground that they were unduly lenient. The Defendant was convicted on 22 March 2024 at the Crown Court at Truro of two sexual offences involving his six-year-old biological daughter. The offences involved inciting the victim to engage in sexual activity, with one count relating to oral sex which did not actually take place and another count relating to sexual activity which did occur. The offending included making the victim watch pornography, offering cigarettes, dressing both the Defendant and the victim in adult female clothing, and using a vibrator. The Defendant was sentenced on 10 May 2024 to a total of four years' imprisonment, with concurrent terms of four years on count 1 and 40 months on count 2, alongside other orders including a Sexual Harm Prevention Order and notification requirements under relevant legislation. The Defendant denied the allegations during police interviews and was remanded on bail prior to trial. The trial took place between 18 and 22 March 2024, resulting in conviction on both counts.

Legal Issues Presented

1. Whether the sentences imposed on the Defendant were unduly lenient within the meaning of section 36 of the Criminal Justice Act 1988.
2. Whether the sentencing reductions applied by the sentencing judge for the fact that the sexual activity in count 1 did not take place and for mitigation and delay were appropriate and proportionate.
3. The correct application of the definitive Sentencing Council guideline for offences under section 8 of the Sexual Offences Act 2003, particularly regarding harm categorisation and culpability.

Arguments of the Parties

Solicitor General's Arguments

• The sentencing judge erred by excessively reducing the starting point sentence of eight years to four years, applying two reductions: one for the non-occurrence of the incited sexual activity and another for mitigation and delay.
• There were multiple category 2 harm factors, including penile penetration of the mouth, additional humiliation through forced dressing, and the victim's extreme youth and vulnerability.
• The sentencing judge misdirected by referring to "extreme youth or extreme vulnerability" as an alternative rather than recognising both factors as present.
• Culpability was category A due to breach of trust, grooming behaviour, and planning, warranting an upward adjustment rather than a discount.
• The judge placed too much weight on the fact the activity did not take place despite the victim refusing, and ignored the increased harm and culpability.
• Mitigation was overstated; previous good character should not significantly reduce the sentence per the guideline.
• Delay in prosecution was acknowledged but justified by investigative necessity and the Defendant’s denial of guilt.
• There was lack of remorse and possible aggravating exploitation of contact arrangements, though caution against double counting was advised.
• Overall, the total sentence of four years was unduly lenient and should be increased.

Defendant's Arguments

• The sentencing judge, as the trial judge, was best placed to assess sentence and had properly applied relevant guidelines and principles.
• Concurrent sentences were appropriate and the principle of totality was correctly applied.
• The judge correctly reduced the starting point for count 1 to reflect that no physical sexual activity took place.
• The reduction for mitigation was justified given the Defendant’s good character, lack of previous convictions, stable employment, and personal circumstances.
• The Defendant’s good character and personal circumstances were properly considered.
• The Defendant was facing incarceration amid overcrowded prison conditions, a relevant contextual factor.
• No statutory aggravating features applied beyond the breach of trust and seriousness of offences during contact visits.
• Mitigating factors included mature age, employment as a mobile emergency HGV tyre fitter, family responsibilities, cessation of sexual fantasies or role play, some delay in prosecution, supportive character references, a positive pre-sentence report, and generally low risk of harm.

Table of Precedents Cited

Court's Reasoning and Analysis

The court began by reiterating the established principles governing applications under section 36 of the Criminal Justice Act 1988, emphasizing the deference owed to the trial judge and the requirement for exceptional circumstances to intervene. It noted that the sentencing judge correctly identified the relevant harm categories and culpability levels, and properly considered the definitive Sentencing Council guideline.

However, the court found two material errors. First, the sentencing judge gave an excessive two-year reduction for the fact that the sexual activity in count 1 did not occur, despite the victim’s refusal rather than voluntary early desistance by the Defendant. The court referenced R v Reed to clarify that reductions for non-occurrence of activity should be proportionate and limited where the offender was only prevented late in the offending.

Second, the court concluded that the sentencing judge overstated the mitigating factors, including the weight given to the Defendant’s good character and delay. The court noted the guideline’s caution against significant reductions for previous good character in offences of this nature.

Balancing these considerations, the court determined that the total sentence of four years was outside the reasonable range and unduly lenient. It recalculated the sentence applying a more moderate reduction for non-occurrence of activity and mitigation, resulting in a total sentence of six years: six years on count 1 and a concurrent term of four years two months on count 2.

Holding and Implications

The court GRANTED the Solicitor General's application for leave to refer the sentences under section 36 of the Criminal Justice Act 1988.

The sentences originally imposed were QUASHED and replaced with sentences of six years' imprisonment on count 1 and four years two months' imprisonment on count 2, to run concurrently, resulting in a total effective sentence of six years' imprisonment.

This decision directly affects the Defendant by increasing the custodial sentence but does not establish new legal precedent beyond the application of established sentencing principles and guidelines.