Factual and Procedural Background
Following a trial in the Crown Court at The City, the Offender was convicted of attempting sexual communication with a child and attempting to incite a child to engage in sexual activity. [1]
The offences involved online communications with a fictitious 14-year-old account operated as a decoy by an online protection group. The communications contained sexualised comments, sexual instructions and discussion of potential sexual contact. [2][3][4][5]
The trial judge imposed two years’ imprisonment suspended for two years, with a concurrent 12-month sentence, a fine and ancillary orders. [6] The Attorney General sought leave to refer the sentence as unduly lenient under section 36 of the Criminal Justice Act 1988, and leave was granted. [7]
Legal Issues Presented
- Whether the sentence was unduly lenient within the meaning of section 36 of the Criminal Justice Act 1988. [7][8]
- Whether the sentencing judge correctly applied the applicable guideline, including the treatment of culpability, the attempted nature of the offending and mitigation. [9][10]
- Whether an immediate custodial sentence was required rather than a suspended sentence. [11][12]
- Whether, despite finding the sentence unduly lenient, the Court should exercise its discretion to leave it unchanged. [13][14]
Arguments of the Parties
Attorney General’s Arguments
- Attorney Hookway argued that the notional sentence was outside the permissible range and that the reductions from the five-year starting point were excessive. [15]
- He submitted that the decoy nature of the account justified only a small reduction because the Offender was not prevented from completing the offence by circumstances attributable to him. [15]
- He argued that a suspended sentence was inappropriate and that immediate custody was required, particularly because the Offender’s residence in The Country meant that rehabilitative conditions could not practically be imposed. [16]
Offender’s Arguments
- Attorney Aspinall submitted that the offending was less serious than comparable cases because the encouragement to touch the child’s clitoris was a single remark, there were no repeated instructions or requests for images, and no meeting had been actively pursued. [17][18]
- He also relied on the Offender’s voluntary cessation of communications and submitted that the trial judge had properly considered the offence and offender characteristics. [18]
Table of Precedents Cited
| Precedent |
Rule or Principle Cited For |
Application by the Court |
| R v Underwood [2026] EWCA Crim 122 |
A reduction because the child was a decoy should ordinarily be small where the offence was not completed for reasons unrelated to the offender. |
The Court accepted that the one-year reduction for the decoy account was generous, while taking account of the Offender’s voluntary cessation and lack of active pursuit of a meeting. [15][10] |
| R v Reed [2021] EWCA Crim 572 |
Offending of this seriousness will ordinarily require immediate custody, subject to exceptional prospects of rehabilitation. |
The Court accepted that immediate custody would ordinarily be appropriate and found that rehabilitation conditions were not practicable because the Offender lived in The Country. [16][11] |
| R v X, Y and Z (References under section 36 of the Criminal Justice Act 1988) [2026] EWCA Crim 845 |
Section 36 references address gross error, public concern and public confidence; appellate intervention requires a sentence to be not merely lenient but unduly lenient. |
The Court applied the high threshold for interference before deciding that the sentence in this case was unduly lenient. [8][12] |
| Attorney General's Reference (No. 4 of 1989) (1989) 11 Cr App R(S) 517 |
The Court retains discretion to leave a sentence unchanged even after granting leave to refer it. |
The Court exercised that discretion and left the sentence unchanged despite finding it unduly lenient. [13][14] |
Court's Reasoning and Analysis
The Court emphasised that section 36 references are subject to a high threshold: a sentence must be unduly, rather than merely, lenient. [8]
The five-year starting point under the applicable guideline was correct. However, the trial judge was wrong to deduct one year merely because only one culpability category A factor was thought to apply. The guideline did not prescribe such an arithmetical reduction, and two category A factors—grooming and significant age disparity—were present. [9][19]
A reduction was nevertheless required at the guideline’s second stage because the offence was an attempt involving a decoy. The Court concluded that a one-year reduction was generous, although the Offender’s voluntary cessation and failure actively to seek a meeting were relevant. [20][10]
The trial judge also addressed mitigation before making the adjustment for the attempted nature of the offence, contrary to the guideline’s sequence. The Court considered that the ultimate result would have been the same on that point. [10]
Applying the principle in Reed, the Court held that the offending ordinarily required immediate custody. A community-based rehabilitative sentence was inappropriate because the Offender lived in The Country and could not attend the relevant programmes. [11]
The Court therefore concluded that the suspended sentence was not merely lenient but unduly lenient, and that a longer sentence would not have been capable of suspension. [12]
Despite that conclusion, the Court exercised its statutory discretion not to quash and replace the sentence. It relied on the Offender’s age, lack of relevant previous offending, absence of further offending, stable circumstances and the absence of an imminent risk of reoffending. [14]
Holding and Implications
Sentence found unduly lenient, but left unchanged. The Court declined to quash or replace the sentence and therefore allowed the existing suspended sentence, fine and related orders to stand. [12][14]
The direct effect was that the Offender received no increased sentence. The opinion identifies no broader new precedent beyond applying existing section 36 principles and exercising the discretion to leave the sentence unchanged. [8][13][14]