Anonymized Summary of the Opinion

Factual and Procedural Background

This opinion concerns an application by the Solicitor General for leave to refer sentences alleged to be unduly lenient. Two defendants were convicted after trial by jury before Judge Jefferies of two counts each of sexual assault contrary to section 3 of the Sexual Offences Act 2003. The named victim, who retains lifelong anonymity under the Sexual Offences (Amendment) Act 1992, was 14 years old and at home at the time.

Defendant 1 (aged 29) and Defendant 2 (aged 28) were delivery workers who attended the victim's home purportedly to deliver a TV stand. While the victim was alone in the house and in her bedroom, each defendant repeatedly touched and kissed the victim in circumstances described at trial. After the incident the victim alerted her mother, the police were informed the same day, and the defendants attended a police station and were arrested. They were convicted on 2 April 2025. Sentencing was adjourned for reports and victim personal statements. The trial judge imposed custodial sentences which were the subject of the Solicitor General's application for leave to refer as unduly lenient.

After sentencing Defendant 1 agreed to, and was subject to, deportation and has been removed from the jurisdiction. The court was referred to a recent appellate authority about continuation of a reference where a defendant has left the jurisdiction and to the role of counsel in such circumstances. The court decided to adjourn the reference in respect of Defendant 1 to allow further submissions on the proper approach where an individual has been removed and will not serve further time, with a two-hour listing and skeleton arguments to be provided.

Defendant 2 remained in custody and was represented and fully instructed; the court proceeded to consider the reference in respect of Defendant 2 and, for reasons set out below, granted leave and increased his sentence on one count.

Legal Issues Presented

1. Whether the sentences imposed on the defendants were unduly lenient such that leave should be granted under section 36 of the Criminal Justice Act 1988 (the Attorney-General's Reference procedure).
2. The correct categorisation of the offending under the offence-specific sentencing guideline for sexual offences (in particular whether the offending falls within harm category 1A or another category, and whether culpability A factors apply).
3. The procedural question whether and how the court should proceed with an Attorney-General's Reference where a defendant has been deported and is absent from the jurisdiction.

Arguments of the Parties

Solicitor General's Position (as advanced by Attorney Faure-Walker)

• The offending should properly be categorised as category 1A under the offence-specific guideline because the victim suffered severe psychological harm and there were two offenders acting together (a culpability A factor).
• The aggravating features (young age of the victim, victim alone at home, in her bedroom) supported a higher starting point and a longer sentence than that imposed.
• On that basis the existing sentence was submitted to be unduly lenient and leave to refer should be granted.

Defence Position for Defendant 2 (as advanced by Attorney Holding)

• The trial judge was the trial judge and was well placed to assess the weight of competing factors; his sentencing approach and resulting sentence were within the range that he could reasonably consider appropriate.
• The offending did not amount to an abuse of trust within the meaning of the guideline, and the case could properly be analysed as falling between categories such as 1A and 1B rather than clearly in 1A.
• There were important mitigating factors (absence of previous convictions, employment, family responsibilities) that supported the sentence imposed.

Position in Respect of Defendant 1 (as raised by Attorney Dobson and the Registrar)

• The court was told that Defendant 1 has been deported and that counsel was not in position to take further instructions; the issue of whether a reference should continue in such circumstances was flagged for further consideration and fuller submissions.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Case A [2023] EWCA Crim 254	That a reference may proceed despite an offender's absence from the jurisdiction where their interests are ably represented by counsel (quoted paragraph 20 of that authority).	The court was referred to this authority when considering the effect of Defendant 1's deportation. The court acknowledged the passage but determined that the particular practicalities of deportation and the inability of counsel to take instructions required further argument; the court therefore adjourned the reference in respect of Defendant 1 for fuller submissions.

Court's Reasoning and Analysis

The court approached the matter in two parts: first addressing the procedural issue arising from the deportation of Defendant 1, and second addressing the substantive question of whether the sentence for Defendant 2 was unduly lenient.

On deportation, the court noted that it had been referred to an appellate authority (Case A) in which the court proceeded with a reference despite the offender's absence because the offender's interests were represented by counsel. The present court observed that there is limited authority on the precise question of how deportation affects an Attorney-General's Reference and expressed concern about entertaining a request by one part of government to increase a sentence when another part of government has removed the individual so that, in practical reality, no further custodial time will be served. The court emphasised the role of counsel being able to take instructions and noted that, in the circumstances, counsel for Defendant 1 was not able to take instructions. For these reasons the court adjourned the reference in respect of Defendant 1 to enable fuller submissions and directed a two-hour listing with skeleton arguments.

On the substantive reference concerning Defendant 2, the court recited the established principles applicable to Attorney-General's References under section 36 of the 1988 Act: the trial judge is particularly well placed to assess weight and that a sentence is only unduly lenient if it falls outside the range which the trial judge might reasonably consider appropriate; leave should not be granted in borderline cases; and the statutory scheme addresses gross error. The court therefore evaluated whether the trial judge's approach to the offence-specific guideline had fallen outside that permissible range.

The court analysed the sentencing guideline categories. It accepted that the victim had suffered severe psychological harm (which engages category 1 harm). It considered the culpability factors and concluded that the presence of two offenders acting together against a 14-year-old constituted a culpability A factor. The court rejected the suggestion that this was an abuse of trust within the meaning of the guideline because there was no significant level of responsibility towards the victim. The court also identified separate and important aggravating features: the victim's young age, that she was alone, and that the conduct occurred in her own bedroom.

Applying the guideline framework, the court concluded that the offending was properly categorised as category 1A (which carries a 4-year starting point, range 3–7 years) rather than the lower categories. The court found that the trial judge had started with an incorrect, lower starting point (the judge had referred to starting points of 2 or 3 years and in fact began with 3 years), and that important aggravating features had not been adequately reflected in the sentence. The court considered the mitigating factors identified by the trial judge (absence of previous convictions, employment and family responsibilities) but concluded that the appropriate sentence, taking aggravating and mitigating factors together, would have been 4 years.

On that basis the court determined that the sentence originally imposed in respect of the relevant count for Defendant 2 was not merely lenient but unduly lenient. The court therefore exercised its discretion to allow the reference and to increase the sentence on the relevant count.

Holding and Implications

Holding: The court took two distinct procedural decisions in this opinion:

• Defendant 1: The reference in respect of Defendant 1 is adjourned to permit fuller argument on the appropriate approach where a defendant has been deported and is absent from the jurisdiction, with a two-hour hearing listed and skeleton arguments ordered.
• Defendant 2: Leave to refer was granted and, having allowed the reference, the court substituted a sentence of 4 years (48 months) for the sentence previously imposed on the principal count (the sentence of 30 months was increased to 48 months). The concurrent count remains as before and consequential orders (including credit for time on remand) remain as before.

Implications:

• The direct effect is that Defendant 2's custodial term on the relevant count is increased to 4 years; all other ancillary arrangements remain unchanged.
• As to Defendant 1, the adjournment preserves the opportunity for fuller submissions on the procedural question of how deportation should affect the course of an Attorney-General's Reference; the court did not resolve that broader question in this opinion.
• The court applied existing principles about the limited circumstances in which a sentence will be found unduly lenient and emphasised that such references are intended to address clear error by sentencers rather than borderline matters. The decision corrects what the court concluded was an error in categorisation under the offence-specific guideline in this particular case rather than creating a novel sentencing principle; no new precedent outside the application to these facts was articulated.

Note: This summary is strictly confined to the matters and reasoning set out in the provided opinion. Where the opinion did not provide extended argument or additional authorities, those items are not included here.