Mulhern, R. v

Factual and Procedural Background

This opinion addresses an application by His Majesty's Solicitor General for leave to refer a sentence to the court under section 36 of the Criminal Justice Act 1988 on the ground that the sentence was unduly lenient and with the intention that it should be increased by this court. The offender, a 51-year-old male, was sentenced on 13 February 2025 to a total of 12 months' imprisonment following guilty pleas to multiple sexual offences committed against a female child victim. The sentencing was conducted by a Crown Court judge, who imposed concurrent sentences for four charges relating to voyeurism, possession of extreme pornography, and possession and making of indecent images of a child. The victim was aged 11 at the time of the first offence and 16 when the offences were discovered. The offences involved covert recording and possession of a large collection of indecent images, including extreme pornography, which caused significant harm to the victim. The offender had no previous convictions but lost employment, social standing, and home as a consequence of the sentence and associated restrictions.

Legal Issues Presented

1. Whether the sentence imposed by the Crown Court judge was unduly lenient under section 36 of the Criminal Justice Act 1988.
2. Whether the judge erred in principle by applying the sentencing guideline for voyeurism rather than the guideline for possession or production of indecent images of children.
3. Whether the sentence should have been increased to reflect the seriousness of the offending, including the possession of extreme pornography.

Arguments of the Parties

Applicant's (Solicitor General's) Arguments

• The judge made an error of principle by treating the offences primarily as voyeurism with a maximum sentence of two years, rather than applying the guideline for possession or production of indecent images of children, which carries a higher starting point and maximum sentence.
• The offending involved raised harm and culpability, justifying a starting point of 26 weeks' custody and a category range of 12 weeks to 18 months, or alternatively a starting point of 18 months with a range of one to three years if the indecent images guideline was applied.
• The possession of extreme pornography should have been factored into the sentence, either by a consecutive term or an increased custodial sentence.
• After discount for the early guilty plea, the appropriate sentence should have been approximately two years, not the 12 months imposed.

Offender's Arguments

• Even if the indecent images guideline had been applied, the sentence would not necessarily have been at the top of the range but possibly around two years.
• Applying the one-third discount for the guilty plea would reduce the sentence to about 16 months, close to the 12 months actually imposed.
• The sentence imposed by the judge was therefore not unduly lenient.

Table of Precedents Cited

No precedents were cited in the provided opinion.

Court's Reasoning and Analysis

The court acknowledged the extreme seriousness of the offending and the significant harm caused to the child victim, including the lasting impact on her ability to trust and feel safe. It agreed that an immediate custodial sentence was necessary and appropriate. The court considered the submissions regarding the correct sentencing guideline to apply and the appropriate sentence range. While recognizing that some judges might have imposed a somewhat longer sentence, the court found that the difference between such a sentence and the one imposed was modest. It concluded that the sentence could not properly be described as unduly lenient. The court emphasized that the key factor was the imposition of immediate custody, which was a significant and justified punishment with substantial consequences for the offender. Consequently, the application for leave to refer the sentence was refused.

Holding and Implications

The court refused leave to refer the sentence for being unduly lenient.

The direct effect of this decision is that the original sentence of 12 months' imprisonment imposed by the Crown Court judge stands. No increase or alteration of the sentence will occur. The court did not establish new precedent but affirmed the appropriateness of the custodial sentence in the circumstances, emphasizing judicial discretion within sentencing guidelines and the importance of immediate custody in serious sexual offences against children.