Summary of Opinion

Factual and Procedural Background

This opinion concerns an application by the Attorney General for leave to refer a sentence considered to be unduly lenient. The Defendant, aged 65 at the time of this application, was tried before Judge Sheridan and a jury at The City Crown Court in June 2025 and convicted of three counts of indecent assault and one count of engaging in sexual activity in the presence of a child. The offences took place between 2002 and 2004 when the Defendant was aged 42–44. The two victims, referred to in the trial as "A" and "B", were aged about 13 or 14 at the time. The victims benefit from lifelong anonymity under the Sexual Offences (Amendment) Act.

On 8 August 2025 the Defendant was sentenced to an overall term of 31 months' imprisonment, the lead sentence being 31 months on count 2 (oral penetration). Concurrent sentences were imposed on the other counts (20 weeks on count 1; 18 months on count 5; 10 months on count 8).

Relevant factual particulars accepted by the court: the Defendant worked as a barber. One victim worked at the barber's shop on Saturdays and the other spent time there. The offending was said to have occurred over a 6-week period within the stated years. The conduct included grooming behaviour, sexualised comments and stories, inappropriate touching (including rubbing of genitals over and under clothing), an occasion where B performed oral sex and the Defendant ejaculated in her mouth (count 2), and occasions where the Defendant masturbated in the presence of a child (count 8). The Defendant was arrested in November 2022, interviewed, and denied sexual contact while giving an alternative account. Victim personal statements described lasting emotional harm, shame, low self-esteem and ongoing therapeutic needs.

The Defendant had no relevant previous convictions (one unrelated shoplifting conviction in 2003). A pre-sentence report proposed a community order as a direct alternative to custody but noted the Prison Service could manage the Defendant's medical conditions. The Defendant suffers from chronic osteoarthritis, reduced mobility, diabetes with eye injections, double incontinence, respiratory conditions and was being tested for possible dementia; after conviction he was remanded and held in the hospital wing where his incontinence could be managed.

Legal Issues Presented

1. Whether the sentence imposed on 8 August 2025 was unduly lenient such that leave should be granted for the Attorney General to refer it under the statutory scheme for Attorney-General's References.
2. Whether the sentencing judge failed to take sufficient account of the separate offending and harm caused to the second victim (A) when determining the overall sentence and starting point for the lead count.
3. If the sentence is unduly lenient, what adjustment to the concurrent/consecutive structure of the sentences is appropriate to reflect totality and the separate criminality against both victims.

Arguments of the Parties

Attorney General's Arguments

• The case involved two child victims aged about 13–14 and the judge correctly categorised the offending under the modern guidelines.
• The judge did not explain how he reached a 40-month starting point for the lead offence before applying discounts, and thereby failed to demonstrate proper consideration of the separate offending.
• The overall sentence was too low to reflect the separate harm caused to two distinct child victims.

Defendant's Arguments

• While a community order suggested in the pre-sentence report was unrealistic, that report emphasized the Defendant's vulnerable state and ill health.
• The offending occurred in a comparatively short period (about 6 weeks) and involved circumstances (including one occasion where B was paid) that the judge could treat as mitigating in context.
• The sentence, although lenient, was not unduly lenient and could properly be described as merciful given the Defendant's health and other mitigation.

Table of Precedents Cited

No precedents were cited in the provided opinion.

Court's Reasoning and Analysis

The court set out and applied the relevant sentencing guidance and statutory provisions that governed historical sexual offending and totality. It noted the Sentencing Council's direction that historical sexual offences should be sentenced in accordance with the regime applicable at the time of commission and referred to sections 57 and 63 of the Sentencing Act regarding the purposes of sentencing and assessment of seriousness. The Totality Guideline (regarding when consecutive sentences are normally appropriate) and the Sentencing Council's guidance on historical sexual offences were treated as relevant.

The court recorded the judge's application of modern categorisations to each count and the starting points derived from those categories: for example, count 2 (oral penetration) was treated as a high harm/culpability offence with a starting point the judge described as 40 months (the judge indicated that, had sentencing occurred at the time of offending, the sentence would have been 40 months before discounts). The judge expressly reduced that starting point to 36 months to reflect passage of time and good character and further reduced to 31 months to reflect the Defendant's ill health.

The court acknowledged established principles governing Attorney-General's References: the sentencing judge is generally best placed to assess competing factors; a sentence is only unduly lenient if it falls outside the range of sentences a judge might reasonably consider appropriate; leave is granted only in exceptional cases and the statutory scheme (section 36 of the 1988 Act) addresses gross error. Applying those principles, the court focused on a deficiency in the sentencing exercise: the judge had not explained how the 40-month starting point accounted for the separate offending against A (counts 5 and 8). The panel found the sentencing remarks lacked recognition of the distinct harm caused to A, and therefore the total criminality had not been reflected in the overall sentence.

In remedying that defect the court considered the judge's own individual determinations for the separate offences against A (the concurrent sentences the judge imposed) and adjusted the concurrency structure rather than imposing materially different quantum for individual counts. The panel concluded that making the 18-month sentence for count 5 consecutive to the 31-month lead sentence on count 2, while leaving the 10-month sentence on count 8 concurrent, appropriately addressed the separate harm and respected the principles of totality and the judge's assessment of mitigation (delay, good character, ill health).

Holding and Implications

RULING: The court granted leave for the Attorney General's Reference and allowed the Reference to the extent of adjusting the structure of sentences: the sentence on count 5 (18 months) will be made consecutive to the lead sentence on count 2 (31 months), and the sentence on count 8 (10 months) will remain concurrent. This adjustment increases the aggregate sentence from 31 months to 49 months.

Implications: The direct effect is an increased overall custodial term for the Defendant to reflect separate offending and harm to the second victim while preserving the judge's assessment of mitigating factors (delay, character, ill health) insofar as they influenced individual count sentences. The opinion does not state that it establishes new legal precedent; it grounds its decision in application of the sentencing guidelines, statutory provisions and established principles governing Attorney-General's References and totality.

The court also recorded appreciation for the written and oral submissions of Attorney Hearn and Attorney Jenson.