MJK, R. v

Factual and Procedural Background

This was a reference by the Attorney General under section 36 of the Criminal Justice Act 1988 concerning an allegedly unduly lenient sentence. Defendant pleaded guilty to eight sexual offences against Victim A and Victim B, committed while Defendant was aged between 13 and 16 and the victims were aged between 7 and 10. [1][2][3][4][5]

The offences involved members of Defendant’s extended family and occurred between 2012 and 2015. Defendant was sentenced in the Crown Court to concurrent three-year community orders with 60 rehabilitation activity requirement days, together with sexual harm prevention and restraining orders. [6][7][8][9][10]

The Attorney General sought permission to refer the sentence as unduly lenient. The Court of Appeal granted permission but declined to interfere with the community sentence, directing only that the victim surcharge be corrected to £15. [11][12][13]

Legal Issues Presented

1. Whether the community sentence was outside the range of sentences reasonably available to the sentencing judge and was therefore unduly lenient. [14]
2. Whether the sentencing judge had impermissibly double-counted Defendant’s developmental disorder and developmental age when reducing the sentence. [15][16]
3. Whether, applying the guidance for sentencing children and young people, a non-custodial sentence was available despite the seriousness of the offending. [17][18][19]

Arguments of the Parties

Attorney General’s Arguments

• The offending was too serious for anything other than immediate custody. [11][15]
• The separate reductions for developmental disorder and developmental age involved significant double counting, particularly because both reflected immaturity. [15][20][16]
• The offending was sustained and deliberate, involved threats to prevent disclosure, and was not merely impulsive. [16][21]
• The cumulative reduction from 16 years to four years and nine months was excessive and rendered the sentence unduly lenient. [16][21]

Defendant’s Arguments

• The community order was justified by the mitigating factors identified by the sentencing judge, including Defendant’s age, developmental difficulties, vulnerability, low risk of reoffending and prospects of rehabilitation. [22][23][24][25]
• The sentence was not, still less was it unduly, lenient. [25]

Table of Precedents Cited

Court's Reasoning and Analysis

The Court recognised that the offending was extremely serious, involving repeated sexual abuse of two young children, penetrative activity, a family setting, threats and substantial psychological harm. [31][32][19]

The Court accepted that the sentencing judge’s two-stage approach created some potential for double counting because youth-related immaturity and neurodiversity could overlap in their effect on culpability. The relevant guidance generally favoured addressing overlapping factors together. [33][28][34][35][36]

However, the Court concluded that Defendant’s neurodiversity involved more than ordinary immaturity and impulsivity. The evidence also demonstrated compromised empathy and disinhibition, providing additional mitigation beyond age-related immaturity. [37]

The Court further held that it was open to the sentencing judge to treat Defendant as significantly younger than 15 because of his developmental maturity. A reduction of approximately 70% might have been generous, but would not itself have been outside the available range. [38][39]

The correct approach was nevertheless to consider how Defendant would have been sentenced as a child at the time of the offending, rather than simply applying discounts to an adult sentence. The available youth options included detention for grave crimes and a youth rehabilitation order with intensive supervision and surveillance. [17][18][40]

The applicable guidance made custody particularly rare for children aged 14 or under, required custody to be a last resort, and preferred intensive youth rehabilitation supervision unless custody was unavoidable. [41][42][43][44][45]

Applying that framework, the Court concluded that, despite the seriousness of the offences, a youth rehabilitation order with intensive supervision and surveillance would have been within the legitimate sentencing range at the time of the offending. Accordingly, the community sentence was also within the range reasonably available to the sentencing judge. [46][19][47]

Holding and Implications

Permission to refer the sentence was granted, but the reference was dismissed in substance. The Court declined to interfere with the community order because it was not unduly lenient. [12]

The direct consequence was that Defendant’s community sentence remained in force, subject only to correction of the victim surcharge to £15. [12][13]

The opinion identifies no broader consequence beyond applying the existing sentencing principles to these circumstances; no new precedent was set.