Factual and Procedural Background
This opinion concerns an application for leave to refer a sentence considered unduly lenient by His Majesty's Solicitor General. The Defendant was convicted in January 2025 of causing a child under 13 to engage in sexual activity and was sentenced in March 2025 to 18 months' imprisonment suspended for 2 years, with a 26-day programme activity requirement. The victim, a 3-year-old child, benefits from lifelong anonymity under the Sexual Offences (Amendment) Act 1992.
The Solicitor General submitted that the sentencing judge erred by categorising the offence harm as Category 3 instead of Category 2, failing to recognise the victim's extreme vulnerability due to youth. Additionally, the Solicitor General argued the judge wrongly assigned culpability Category B instead of Category A by not recognising grooming behaviour.
The Defendant’s counsel accepted the harm category error but contended the judge was correct in rejecting grooming, maintaining the culpability category was appropriate, and that the sentence was not unduly lenient considering the Defendant’s prior sentence.
The Defendant had a prior conviction from 2016 involving serious sexual offences against another child, resulting in an overall sentence of 11 years and 3 months imprisonment. He was released in April 2023 and had made some progress in addressing substance misuse and mental health issues.
The instant offending was disclosed in November 2022 and involved sexual assault of a child aged 3 at the time, including masturbation and ejaculation. The Defendant was charged in February 2024, pleaded not guilty, but was convicted after trial in January 2025.
The sentencing judge found the offending caused harm to the victim, who exhibited sexualised behaviour at nursery, categorised the offence as Category 3B, and imposed a suspended sentence, noting the Defendant had served a long previous sentence. The judge made no finding on grooming and rejected a submission that the offending was abuse of trust.
Legal Issues Presented
- Whether the sentencing judge erred in categorising the harm of the offence, specifically whether the victim’s extreme youth warranted a Category 2 rather than Category 3 classification.
- Whether the sentencing judge erred in assessing the culpability category, particularly whether grooming behaviour was present to justify Category A rather than Category B culpability.
- Whether the sentence imposed was unduly lenient in light of the correct categorisations and the Defendant’s prior offending and sentence.
Arguments of the Parties
Solicitor General's Arguments
- The judge incorrectly categorised the harm as Category 3 rather than Category 2, failing to account for the victim’s extreme vulnerability due to age.
- The judge erred in culpability by not recognising grooming behaviour, thus misclassifying the offence as Category B instead of Category A.
Defendant's Counsel's Arguments
- Accepted the harm category error, agreeing it was Category 2 rather than Category 3.
- Argued the judge was correct to reject grooming, thus culpability Category B was appropriate.
- Contended the sentence was not unduly lenient considering the Defendant’s prior lengthy sentence and rehabilitation efforts.
Table of Precedents Cited
| Precedent |
Rule or Principle Cited For |
Application by the Court |
| Green v R [2019] EWCA Crim 196; [2019] 2 Cr App R (S) 16 |
Principles on sentencing and totality, including how to consider earlier sentences when imposing new sentences. |
The court referred to this precedent to guide the application of the Totality guideline, ensuring that the combined sentence remains just and proportionate. |
Court's Reasoning and Analysis
The court accepted the common ground that the harm category was incorrectly classified as Category 3 and should be Category 2 due to the victim’s extreme youth and vulnerability. The court examined the evidence regarding grooming behaviour but found no sufficient basis to be sure that grooming had occurred, thus retaining culpability at Category B.
The court noted aggravating factors including ejaculation during the offence and the Defendant’s prior sexual offences against children. Mitigating factors included the Defendant’s medical condition, efforts at rehabilitation, and positive conduct post-release, though the lack of a guilty plea meant no credit was given for that.
Applying the Totality guideline, the court considered the relationship between the instant offence and prior sentences, overlapping circumstances, and the need for a just and proportionate overall sentence. The court rejected the submission that the instant offence merited a sentence at the bottom of the category, highlighting the serious harm caused.
Balancing aggravating and mitigating factors, the court determined that a sentence of 4 years would be appropriate if the instant offence were sentenced alone. Considering the prior sentence and the requirement for a just total sentence, the court concluded a consecutive sentence of 2.5 years’ imprisonment was the lowest appropriate sentence.
Holding and Implications
The court granted leave to refer the sentence and allowed the Reference, concluding that the original sentence was unduly lenient.
The court imposed a sentence of 2.5 years’ imprisonment on the Defendant for the instant offence.
This decision directly affects the Defendant by increasing the custodial sentence for the offence. No new legal precedent was established beyond the application of existing sentencing principles and guidelines.