Lunn, R. v

Factual and Procedural Background

This is a Reference by the Attorney General under s.36 Criminal Justice Act 1988 challenging a sentence imposed on 30 January 2026 in the Crown Court at The City by Judge Downing. The Attorney General sought leave to refer the sentence as unduly lenient. The Defendant (aged 24 at the time of the offending) pleaded guilty to three counts: (1) rape of a child under 13 contrary to section 5 Sexual Offences Act 2003; (2) assault by penetration of a child under 13 contrary to section 6 Sexual Offences Act 2003; and (3) taking an indecent photograph of a child contrary to section 1 Protection of Children Act 1978. The custodial sentence imposed was a sentence for offenders of particular concern comprising 4 years 6 months' custody with 1 year further licence, with counts 2 and 3 ordered concurrent.

Factual findings made by the trial judge (after a Newton hearing) were that the Defendant met a 16-year-old (Person A) by prior arrangement and, on a later occasion, a 12-year-old (Victim) who appeared older. The judge found the Defendant had assumed the Victim was 16, accepted the Victim had initiated sexual activity, and concluded the Defendant reasonably believed the Victim to be 16 and that she consented. The judge accepted some parts of the Defendant's written basis of plea and rejected certain parts of the Victim's account.

Legal Issues Presented

1. Whether the sentence imposed was unduly lenient such that leave should be granted to refer the sentence under s.36 Criminal Justice Act 1988.
2. How the sentencing guidelines and starting points for the rape of a child under 13 should be adjusted in light of the trial judge's factual findings (notably the judge's finding of a reasonable belief as to the Victim's age and that the Victim initiated the sexual activity) and the interaction between counts (totality and aggravation from count 2).

Arguments of the Parties

Attorney General's Arguments (Attorney Lloyd)

• The overall reduction from a 10-year starting point to a notional 7-year figure (before plea discount) was excessive.
• The trial judge's characterisation of the Victim's evidence suggested outdated or stereotypical approaches; insufficient weight was given to the need for deterrent sentences in such cases.
• The judge overstated the Defendant's immaturity; there was no basis to treat the Defendant as particularly immature for his age.
• There should be an adjustment for totality to reflect the seriousness of count 2 in addition to count 1.

Defendant's Arguments (Attorney Carse)

• On the judge's factual findings, the Defendant reasonably believed he was not committing offences with the Victim.
• The filming feature that led to a higher culpability categorisation for count 1 began before the interaction with the Victim and was known to the Victim.
• Count 2 formed part of the same course of conduct and the judge appropriately addressed totality; count 3 should not lead to additional upward adjustment beyond its contribution to categorisation of count 1.

Table of Precedents Cited

Court's Reasoning and Analysis

The court reviewed the trial judge's careful approach, including the Newton hearing and detailed sentencing remarks. It accepted the judge's categorisation of the counts and that the starting point for count 1 was 10 years. The court agreed the judge reasonably found the Defendant believed the Victim to be 16 and that the Victim initiated the sexual activity, making this far from the typical case for which the 10-year starting point is primarily designed. The court acknowledged the deterrent element is incorporated into the guideline starting point but observed that count 2 represented additional criminality beyond count 1 and was not properly reflected in the judge's count 1 reduction. The court considered two approaches to count 2 (treating it as aggravating or addressing totality) and adopted treating count 2 as an aggravating feature, estimating an upward adjustment of about one year before mitigation. It then accepted substantial downward adjustments for the case-specific mitigation: reasonable belief as to age/consent, the Defendant's good character, immediate and frank acceptance of responsibility, and remorse. The court emphasised respect for the trial judge's advantage in having heard the witnesses directly and stated that although other judges might have imposed a harsher sentence, the judge's reasons for leniency were cogent. Concluding that any potential undue leniency would be marginal, the court refused leave to refer.

Holding and Implications

Leave to refer the sentence was refused.

Consequences: The sentence imposed by the Crown Court remains in force. The court indicated that no new legal precedent was established; the decision rested on the particular factual findings and the judge's sentencing exercise. No referral for increase of sentence was made.