BZG & Anor, R. v

Factual and Procedural Background

This case involves two offenders, a male (referred to as Defendant) and a female (referred to as Appellant), who engaged in joint sexual offending involving the Appellant's young child, aged 18 months at the time. The Defendant and Appellant had a sexual relationship during which they caused the child to witness sexual activity on three occasions and caused the child to participate in limited sexual acts on two occasions. The Defendant was not the child's father. The offending was discovered following a complaint from another woman, leading to the Defendant's arrest and investigation, including examination of his mobile phone which contained video evidence of the offences. Further offences committed solely by the Defendant were also uncovered, including breaches of court orders and possession of indecent images of children.

The Appellant was convicted after trial, while the Defendant pleaded guilty to all offences. Sentencing was conducted by Her Honour Judge Whitehouse KC on 20 February 2025, following a protracted procedural history beginning with the Defendant's arrest on 6 November 2020. Both offenders were subject to Sexual Harm Prevention Orders, indefinite for the Defendant and five years for the Appellant. The case involved complex sentencing considerations due to the joint nature of the offending and the differing culpability of the two offenders.

Legal Issues Presented

1. Whether the sentences imposed on the Defendant and Appellant were unduly lenient, particularly in relation to the categorisation of the offences under the relevant sentencing guidelines.
2. Whether the harm categorisation of the offences involving the child victim should have been elevated from category 3A to category 1A, reflecting the child's extreme vulnerability due to young age.
3. Whether the sentencing judge gave appropriate weight to aggravating and mitigating factors, including previous convictions, culpability, and delay in proceedings.
4. The appropriate exercise of discretion under section 36 of the Criminal Justice Act 1988 regarding referral of sentences as unduly lenient and potential increase of those sentences.

Arguments of the Parties

Attorney General's Arguments

• The lead offences of causing a child to engage in sexual activity were wrongly categorised as category 3A; the child's extreme youth warranted categorisation at category 1A, with a starting point of 13 years' custody and a range of 11 to 17 years.
• The sentencing judge gave insufficient weight to the Defendant's previous convictions and multiplicity of offences, resulting in a sentence that did not adequately reflect overall harm and culpability.
• Similarly, the Appellant's sentence was unduly lenient due to incorrect harm categorisation and excessive weight given to mitigating factors, failing to properly reflect culpability and harm.
• The "relatively low level" of sexual activity should not have justified a sentence reduction to the degree imposed.

Defendant's and Appellant's Position

The opinion does not contain a detailed account of the parties' legal arguments from the Defendant or Appellant themselves beyond the submissions made by the Attorney General and the judge's consideration of mitigation and culpability.

Table of Precedents Cited

Court's Reasoning and Analysis

The court acknowledged the extraordinary and complex nature of the case, involving joint offending by two individuals of markedly different culpability. It carefully analysed the evidence, including extensive WhatsApp messages and video recordings, to assess the offenders' respective roles and motivations.

The court agreed that the Defendant was a dangerous, predatory sex offender with a sexual interest in children, who manipulated and coerced the Appellant into participating in the offending. The Appellant was found to be vulnerable, with a history of abusive relationships and low self-esteem, and subject to coercion and manipulation by the Defendant.

The court considered the applicable sentencing guidelines for the offences under sections 8 and 11 of the Sexual Offences Act 2003, noting the difficulty in reconciling the differing sentencing ranges for causing/inciting a child to engage in sexual activity versus engaging in sexual activity in the presence of a child. It acknowledged that the harm caused to the child was of a relatively low level within the scope of the offences, involving kissing and smacking, but emphasised the seriousness of any sexual offending involving a child.

Regarding the Attorney General's submission that the harm categorisation should be elevated to category 1A due to the child's extreme youth, the court distinguished this case from R v AZ, which involved rape of a child. It found that the lower level of sexual activity here did not justify elevating the harm category to the highest level.

The court accepted the judge's nuanced approach to sentencing the Appellant, who received a suspended sentence with a mental health treatment requirement, reflecting her reduced culpability and the impact on the child victim.

For the Defendant, the court recognised the leniency of the sentence in light of his dangerousness and previous offending, but concluded that increasing the custodial term would not materially improve public protection given the extended sentence and indefinite Sexual Harm Prevention Order imposed. The court declined to interfere with the judge's sentencing discretion.

Holding and Implications

The court granted leave to the Attorney General to refer the sentences under section 36 of the Criminal Justice Act 1988 as unduly lenient but declined to increase the sentences.

The direct effect is that the sentences imposed by Her Honour Judge Whitehouse KC stand as pronounced. The decision emphasises the importance of careful, fact-specific application of sentencing guidelines in sexual offences involving children, particularly in complex joint offending scenarios with differing offender culpabilities. The court expressly limited the scope of its decision to the facts before it and cautioned against using the Defendant's sentence as a precedent except in identical cases. No new legal precedent was established.