Morgan, R. v

Factual and Procedural Background

The opinion of Judge Singh concerns an application under section 36 of the Criminal Justice Act 1988 by the Appellant for leave to refer sentences passed on the Defendant as unduly lenient. The Defendant, born 10 June 1985, was convicted on 17 April 2025 at the Crown Court at The City of multiple sexual offences against his daughter (the Victim, born 2006), the offending having occurred between August 2014 and August 2019 when the Victim was aged 8–12. On 14 August 2025 Judge Taylor sentenced the Defendant to concurrent extended sentences for the various counts, producing an effective extended determinate sentence of 8 years (6 years custodial term and 2 years extended licence). The Defendant was made subject to a sexual harm prevention order (SHPO), restraining orders and indefinite notification requirements, and may be included on a relevant list held by Agency A. The Appellant sought leave to refer the sentences as unduly lenient and, if appropriate, a variation of the SHPO.

Legal Issues Presented

1. Whether the sentences imposed on the Defendant were unduly lenient within the meaning of section 36 of the Criminal Justice Act 1988.
2. Whether the sentencing judge erred in categorising harm and culpability under the Sentencing Body guidelines for (a) sexual assault of a child under 13 and (b) causing or inciting a child under 13 to engage in sexual activity.
3. Whether the sentencing judge erred in applying the principle of totality when structuring concurrent sentences.
4. Whether the SHPO should have included conditions prohibiting ownership or control of devices capable of accessing the internet.

Arguments of the Parties

Appellant's Arguments (Attorney Lloyd)

• The custodial term of 6 years was unduly lenient.
• The judge erred in categorisation: the Victim suffered severe psychological harm such that sexual-assault offences should have been placed in category 1 and causing/inciting offences in category 2.
• Count 5 (encouraging oral penetration) should have been treated as category 2A (starting point 8 years) with only a limited downward adjustment despite non-completion of the act.
• Aggravating features (previous convictions, threats/blackmail, some offending while intoxicated) warranted a higher overall sentence and a more robust totality uplift rather than effectively sentencing on a single lead offence.
• If the sentence is increased, the SHPO should be varied to include internet/device prohibitions as sought by the prosecution.

Respondent's Arguments (Attorney Scott)

• The sentence, while lenient, was within the range a sentencing judge might reasonably consider and thus not unduly lenient.
• The sentencing judge was entitled to his assessment of harm (including any decision not to find "severe" psychological harm) given his trial familiarity and the victim statements he had seen.
• The judge was entitled to apply downward adjustment for non-completion of count 5 and to select a lead offence (count 6) when structuring concurrent sentences; totality was addressed by the judge.
• The judge was entitled to refuse the proposed internet-related SHPO conditions on the facts; other supervisory measures (indefinite SHPO, notification, extended sentence) were in place.
• If this Court were to increase the sentence, some allowance for unfairness arising from the Appellant adopting a different approach to categorisation than the prosecution should be made.

Table of Precedents Cited

Court's Reasoning and Analysis

The Court began by applying established section 36 principles (Egan and Attorney-General's Reference No 4 of 1989): deference to the first-instance judge, the high threshold for finding a sentence unduly lenient, and retention of appellate discretion. The Court rejected the Appellant's submission that the sentencing judge was required to find "severe" psychological harm: that was a matter of evaluative judgment for the sentencing judge who had presided at trial and had seen the Victim give evidence and had two victim personal statements.

The Court examined categorisation under the Sentencing Body guidelines. It accepted that count 5 (encouraging oral penetration) should properly have been regarded as falling within category 2 harm (because, if completed, it would have involved penile penetration) and thus category 2A culpability. The Court acknowledged that non-completion of the act warranted a reduction from the category 2A starting point, but concluded that the sentence actually imposed (effectively a 5-year custodial term on count 5 before concurrency adjustment) plus only a one-year uplift to 6 years total custodial did not adequately reflect the overall gravity, given the number of other offences and aggravating features.

The Court identified a potential concern with the application of the totality principle: while the sentencing judge was entitled to select a lead offence, the overall sentence must reflect the cumulative gravity of multiple offences even when concurrent. Balancing the aggravating features against limited mitigation, the Court concluded the necessary custodial term for count 5 should have been 8 years (subject to the usual adjustment for non-completion having been considered but still resulting in a higher term than imposed).

The Court also rejected the Appellant's submission that the SHPO should automatically have included internet/device prohibitions; that was a matter for the sentencing judge and internet access had not featured heavily at trial.

Holding and Implications

HOLDING: Leave to refer was granted. The Court quashed the sentence on count 5 and substituted an extended sentence of 10 years, comprising a custodial term of 8 years and an extended licence period of 2 years. The other sentences remain as originally imposed and concurrent. The total sentence is therefore an extended sentence of 10 years (8 years custody + 2 years extended licence).

Implications: The direct effect is an increased custodial term on count 5 and an increased total extended sentence for the Defendant. The Court did not alter other concurrent sentences or the extended licence period. The Court declined to vary the SHPO conditions sought by the Appellant. No broader novel precedent was established; the decision applied existing principles on section 36 referrals, guideline categorisation and totality to the facts of this case.