Summary of Opinion (Anonymized)

Factual and Procedural Background

The Attorney General applied for leave under section 36 of the Criminal Justice Act 1988 to refer sentences imposed on the Defendant as unduly lenient. The Defendant, born 17 August 1965 and aged 59 at sentence, pleaded guilty on 14 July 2025 in the Crown Court at The City to three sexual offences arising from communications with a police-operated decoy (the "Decoy") who purported to be a 13-year-old boy.

The offences and immediate outcome at sentence were: Count 1 (attempted sexual communication with a child) — 10 months' imprisonment suspended for two years; Count 2 (attempting to incite a child to engage in sexual activity) — two years' imprisonment suspended for two years (taken as the lead count); Count 3 (attempting to cause a child to watch a sexual act) — eight months' imprisonment suspended for two years. Sentences ran concurrently, yielding an overall suspended sentence of two years' imprisonment for two years. Additional orders included a surcharge, a 10-year Sexual Harm Prevention Order, forfeiture and destruction of a mobile phone, notification obligations under the Sexual Offences Act 2003, and potential inclusion on a DBS list.

The factual basis in the Final Reference states that, between 6 and 14 November 2024, the Defendant engaged the Decoy via Company A, sent explicit messages and images, encouraged masturbatory and penetrative activity (count 2), solicited images, and sent a video of himself masturbating (count 3). The Defendant was arrested on 3 January 2025; a mobile phone was seized and the Defendant made admissions in interview, including offering explanations relating to his mental health and past abuse.

Procedurally, the Defendant had no previous convictions. The case proceeded to the Crown Court for plea and sentence. The sentencing judge declined a pre-sentence report, sentenced on the day, and applied mitigation (age, lack of previous convictions, guilty pleas) resulting in the suspended custody outcome described above. The Attorney General sought leave to refer the sentence as unduly lenient.

Legal Issues Presented

1. Whether leave should be granted under section 36 of the Criminal Justice Act 1988 to refer the sentences on the basis that they were unduly lenient.
2. Whether the sentence imposed by the sentencing judge fell outside the range of sentences which the judge could reasonably consider appropriate (i.e., whether the sentence was unduly lenient), having regard to the applicable sentencing guidelines, the nature of the offences, and mitigation.
3. If the sentence was unduly lenient, whether this Court should exercise its discretion to increase the sentence, or refrain from doing so despite concluding it was unduly lenient.

Arguments of the Parties

Attorney Robertson (for the Attorney General)

• The sentencing judge failed to elevate the notional starting point (five years for the lead offence) to reflect the concurrent effect of counts 1 and 3; an upward adjustment from the starting point was required even where sentences run concurrently.
• The judge gave too large a reduction for the lack of a real child victim; only a limited reduction should apply because the Defendant only desisted after becoming suspicious the Decoy was a police officer.
• The mitigation relied upon by the judge was overstated and not "massive"; there was limited material (no pre-sentence report) to justify the extent of the reduction, so the sentence went outside the appropriate range.
• Argued, as a secondary point, that full one-third credit for guilty pleas may have been inappropriate because the pleas were entered at plea and trial preparation stage rather than at the first hearing (citing R v Plaku).
• Overall submission: even after mitigation and any appropriate plea credit, the resultant two-year suspended sentence was too low to reflect seriousness and could not lawfully have been suspended.

Attorney Johnson (for the Defendant)

• The Court should give weight to the experienced sentencing judge's assessment and not substitute its own view; sentencing guidelines are not rigid tramlines and judges are entitled to a "feel" for the justice of the case (citing R v Privett).
• On the two-stage approach for cases with no real child, the judge properly identified the intended activity and then applied a downward adjustment for the fact there was no real victim; the judge was entitled to make the reduction he did.
• The judge properly took account of significant mitigation: voluntary cessation of communication, admissions made at interview, the Defendant's age (59) and lack of previous convictions, history of prior abuse and mental health issues, evidence of referrals to community mental health services, and an oral report from a health practitioner present in court.
• Regarding guilty-plea credit, the judge was entitled in the circumstances to give full discount given the chronology and indications recorded on the Better Case Management form.
• If the Court concluded the sentence was unduly lenient, it should nevertheless exercise its discretion not to increase the sentence in light of the unusual circumstances and subsequent developments (e.g., the Defendant's engagement with mental health services).

Table of Precedents Cited

Court's Reasoning and Analysis

The Court applied the established principles governing section 36 referrals, emphasising deference to the sentencing judge but recognising that intervention is appropriate where a sentence falls outside the range a reasonable sentencing judge could have adopted.

The Court examined the applicable statutory maxima and the Sentencing Council guidelines relevant to each count. It identified the appropriate guideline categories and starting points as follows (as stated in the judgment):

• Count 1 (attempted sexual communication with a child): Category 1, Culpability A — Category 1A starting point 18 months (range nine months to two years).
• Count 2 (attempting to incite a child to engage in sexual activity): Category 1, Culpability A — Category 1A starting point five years (range four to ten years); the lead count.
• Count 3 (attempting to cause a child to watch a sexual act): Category 2, Culpability A — Category 2A starting point two years (range one to three years).

The Court accepted that the sentencing judge was entitled, under the two-stage approach in Privett and the guidelines, to adjust the notional sentence downwards because there was no real child victim. It also accepted mitigation had force: the Defendant's age, lack of previous convictions, admissions and the information before the judge regarding mental health, and the guilty pleas.

The Court nevertheless concluded that, even allowing for mitigation and a generous one-third reduction for guilty pleas (which the Court accepted was justifiable on the material available and the BCM form indications), it was difficult to see how the notional sentence after trial could reasonably have been as low as three years. Because achieving a two-year sentence after plea credit required a notional post-trial figure of three years, the Court determined the sentence imposed was unduly lenient in that it fell outside the reasonable range.

Having reached that conclusion on unduly leniency, the Court then exercised its discretion on whether to increase the sentence. Key factors in declining to increase were:

• The sentence was suspended and the Defendant had begun to act on the assumption of non-immediate custody.
• Subsequent events: the Defendant attended the scheduled mental health appointment, was assessed as having complex needs, and the case was referred to a multidisciplinary team — factors suggesting vulnerability and ongoing health needs.
• The Court accepted the Defendant could be regarded as a vulnerable person; in these particular circumstances increasing the sentence would be unfair or inappropriate.
• The Defendant remained subject to the suspended sentence order and other protective orders (e.g., Sexual Harm Prevention Order), with the consequence that breach or further offending could activate custody.

On balance, although the Court found the sentence unduly lenient, it exercised its discretion not to alter the sentence given the specific and unusual features and developments since sentence.

Holding and Implications

Primary Holding: Leave to refer was granted under section 36 of the Criminal Justice Act 1988, and the Court concluded that the sentence imposed was unduly lenient.

Dispositive Action: The Court did not alter the sentence imposed below.

Implications and consequences:

• The referral was permitted to proceed (leave granted), but the sentence (two years' imprisonment suspended for two years, concurrent on the three counts) remains unchanged.
• The Defendant remains subject to the suspended sentence order and the ancillary orders made at sentence (10-year Sexual Harm Prevention Order, forfeiture and destruction of a mobile phone, notification requirements under the Sexual Offences Act 2003, and potential inclusion on a DBS list), meaning custody could be activated upon breach or further offending.
• The Court emphasised that, although it found the sentence fell outside the range the sentencing judge could reasonably have considered appropriate, it exercised restraint in increasing the sentence because of the specific circumstances (vulnerability and post-sentence developments) and the discretionary nature of section 36 relief. No new legal principle was established; the decision applies established section 36 principles to the facts of this case.

Administrative Note

This summary is prepared solely from the provided opinion text. All identifiable personal and place names have been anonymized in accordance with the instructions governing this summary.