Riley, R. v

Factual and Procedural Background

The opinion, authored by Judge Singh, concerns an application under section 36 of the Criminal Justice Act 1988 to refer a sentence as unduly lenient. The Defendant, born 27 September 2004, committed an offence in June 2023 when the Plaintiff (born 28 June 2008) was aged 14. The Defendant pleaded guilty on 5 September 2025 at the Crown Court to assault by penetration contrary to section 2(1) of the Sexual Offences Act 2003. On 11 November 2025 Judge Warburton sentenced the Defendant to a 2-year term of detention suspended for 2 years, with 20 days RAR, 200 hours unpaid work, a sexual harm prevention order for 10 years and a restraining order until further order. The Defendant was subject to notification requirements under Part 2 of the Sexual Offences Act 2003 and potential listing by the Disclosure and Barring Service. The appellate court directed corrections to Crown Court records concerning an erroneously recorded surcharge and the description of the sentence (recorded as "imprisonment" rather than detention in a young offender institution). His Majesty's Solicitor General (represented by Attorney Dhadda) applied for 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 sentence on the ground that it is unduly lenient.
2. Whether the offending should have been categorised as harm Category 2B (victim particularly vulnerable due to personal circumstances—age) or Category 3B under the Sentencing Council Definitive Guideline for assault by penetration.
3. Whether an immediate custodial sentence (not capable of suspension) was required, rather than a suspended sentence, having regard to aggravating factors and the Imposition Guideline.

Arguments of the Parties

Attorney Dhadda's Arguments

• The sentence was unduly lenient and failed to reflect the seriousness of the offending.
• The offence should have been placed in category 2B on the basis that the Plaintiff's age made her particularly vulnerable due to personal circumstances; reliance was placed on R v M.
• Even if category 3B was correct, the aggravating factors (age, location, timing, impact on the Plaintiff, and the Defendant's intoxication) justified a higher custodial term that could not legally be suspended (i.e., over 2 years' custody).
• Alternatively, if a 2-year custodial term was appropriate, the judge ought not to have suspended it given the nature of the offence and the Imposition Guideline.

Attorney Pitman's Arguments

• The sentence was not unduly lenient; the sentencing judge was highly experienced and properly applied the guidelines.
• The judge was entitled to place the offence in category 3 harm while treating the Plaintiff's age as an aggravating factor rather than as making the Plaintiff "particularly vulnerable" for category 2 purposes; distinction relied upon between this case (Plaintiff aged 14) and R v M (13-year-old).
• The judge properly increased the notional sentence before applying 25% credit for the guilty plea and permissibly suspended the resulting 2-year sentence in accordance with the Imposition Guideline and prospects of rehabilitation; community supervision provided meaningful intervention and punishment.
• If leave were granted, the court should decline to exercise its discretion to increase the custodial term.

Table of Precedents Cited

Court's Reasoning and Analysis

The court began by noting statutory anonymisation under the Sexual Offences (Amendment) Act 1992. It reviewed the facts as admitted and the sentencing exercise undertaken by the sentencing judge, including that the judge categorised culpability as B and harm as category 3B under the Definitive Guideline on assault by penetration. The sentencing judge increased the notional sentence above the category starting point to reflect aggravating factors (including the Plaintiff's age as an aggravating factor, location, offender intoxication and impact on the Plaintiff), applied 25% credit for the guilty plea, and then suspended the 2-year sentence having regard to the Imposition Guideline and prospects of rehabilitation for a young adult.

Applying established principles governing section 36 applications (as summarised in Attorney-General's Reference (Egan) and earlier authorities), the court assessed whether the sentence fell outside the range which the sentencing judge could reasonably consider appropriate or involved a gross error. The court considered the submissions: Attorney Dhadda argued for category 2B and immediate custody; Attorney Pitman defended the judge's careful balancing and suspension of the sentence. The court emphasised that R v M did not establish a rigid rule that age alone (here 14 rather than 13) mandates category 2, and reiterated that categorisation is fact-sensitive. Concluding that the sentencing judge had properly balanced aggravating and mitigating factors, engaged with relevant guidelines (including those concerning young adults), and reached a conclusion within the range of reasonable judicial choices, the court found no basis to interfere. The court also corrected administrative errors in the Crown Court record concerning an erroneously recorded surcharge and the misdescription of the sentence as "imprisonment" rather than detention in a young offender institution.

Holding and Implications

LEAVE REFUSED

Direct effect: The application for leave under section 36 of the Criminal Justice Act 1988 was refused and the sentence as imposed by the Crown Court remains in effect. The appellate court directed correction of the Crown Court record to remove the erroneously recorded surcharge and to record the sentence correctly as detention in a young offender institution rather than "imprisonment."

No new legal precedent was created; the decision reaffirmed that categorisation and sentencing for young victims require a fact-sensitive approach and that appellate intervention under section 36 is appropriate only in exceptional cases involving gross error.