Factual and Procedural Background
The Appellant pleaded guilty to making Category A and Category C indecent photographs of a child. The offences concerned images of a girl who was shortly under 16; the Appellant was 17 when the images were made and believed she was 16. [1][2]
The Appellant was sentenced by the Crown Court at The City to 16 months’ detention in a Youth Offender Institution, suspended for two years, for the Category A offence, and a concurrent six-month suspended sentence for the Category C offence. A rehabilitation activity requirement, deprivation order and surcharge were also imposed. [1][3]
The Appellant appealed on the basis that the sentence was manifestly excessive. [4][5]
Legal Issues Presented
- Whether the sentencing judge adopted an excessively high starting point in view of the Appellant’s age and the circumstances of the offending. [4][6]
- Whether the Appellant’s mitigation was adequately reflected in the sentence. [4]
- Whether the custody threshold had been crossed. [4][7]
- Whether the offence-specific Sentencing Council guidelines applied, or whether it would be contrary to the interests of justice to follow them. [6][8][9]
Arguments of the Parties
Appellant’s Arguments
- The sentence was manifestly excessive despite being suspended. [10]
- The judge had started from too high a starting point, had failed to reflect the substantial mitigation, and had imposed custody despite the custody threshold not being met. [4]
- The Appellant’s belief that the girl was 16, her agreement to the photographs, their private nature, and the Appellant’s age and immaturity substantially reduced culpability. [11][7]
Table of Precedents Cited
| Precedent |
Rule or Principle Cited For |
Application by the Court |
| R v Gnanaimat [2025] EWCA Crim 620 |
The guideline starting point should be distinguished from subsequent adjustments. |
The Court relied on the case in explaining that the “starting point” means the starting point initially identified under the guidelines. [6] |
| R v Naqvi [2024] EWCA Crim 958 |
The guideline starting point should be distinguished from later sentencing adjustments. |
The Court cited the case alongside Gnanaimat when rejecting the argument that the judge had begun from the wrong starting point. [6] |
Court’s Reasoning and Analysis
The Court held that the sentencing judge had identified the correct guideline starting point: six years’ custody for a Category A offence. The complaint was therefore not that the starting point itself was wrong, but that the guidelines should have been adjusted or not followed in this unusual case. [6]
Under sections 59 and 60 of the Sentencing Act 2020, courts generally must follow relevant Sentencing Council guidelines and select the appropriate offence category. However, section 60(5) permits departure where none of the guideline categories sufficiently resembles the offender’s case. [12][13]
The Court considered this a highly unusual case because the images involved a girl close to 16, in a consensual relationship with a 17-year-old who believed she was 16. Although the images technically involved penetrative sexual activity, the full circumstances did not sufficiently resemble the Category A guideline category. [14][15][8]
Alternatively, the Court concluded that the extensive mitigation and unusual facts made this one of the rare cases in which following the offence-specific guidelines would be contrary to the interests of justice under section 59(1). [9]
The Court continued to apply the guidelines concerning children and young persons and suspended or community sentences. It held that the custody threshold had not been crossed because neither a fine nor a community sentence was shown to be unjustified. [16][7]
The Appellant’s belief about the girl’s age was not a defence, but it was highly relevant to culpability. The Court assessed culpability as being at the lowest level, and considered the harm minimal because the photographs were taken with the girl’s permission for private use. [7]
Holding and Implications
Appeal allowed. The suspended sentence was quashed and replaced with a 12-month conditional discharge. The surcharge was reduced from £41 to £20, and no notification requirements remained. [17][18]
The direct effect was that the Appellant would receive no punishment provided no further offence was committed during the conditional-discharge period; a further offence could result in the Appellant being sentenced for both offences. [17]
The opinion states no broader implications or new precedent; its direct significance was the reduction of the sentence in this exceptional case. [8][9][17]