YZ & Anor, R. v

On an Attorney General reference for undue leniency, the appellate court should intervene only where the sentence falls outside the range of permissible sentences because of a gross error of principle. A sentencing judge may reflect the totality of multiple offences through a principal concurrent sentence, assessed as a whole rather than by a mechanical addition to a guideline starting point.

Culpability factors must not be double counted. In particular, grooming adds nothing where a child’s compliance is already explained by a grave abuse of parental trust, and payment between the two offenders does not by itself amount to commercial exploitation in the guideline sense.

The Attorney General sought leave under section 36 of the Criminal Justice Act 1988 to refer as unduly lenient sentences imposed at St Albans Crown Court on YZ and Andrew Barker.

YZ, the victim’s mother, and Barker pleaded guilty to offences involving sexual activity by a child under 13, indecent images of a child and related offending. Their offending involved the sexual abuse of YZ’s young daughter, recorded and sent to Barker, who made payments to YZ. The Crown Court imposed concurrent effective sentences of six years’ imprisonment on YZ and six years and nine months’ imprisonment on Barker.

The central issue was whether the sentencing judge’s treatment of culpability, totality, mitigation and guilty-plea credit produced sentences outside the permissible range.

1. Leave was granted, but the reference was dismissed. The sentences were lenient, but they were not unduly lenient. The section 36 procedure under the Criminal Justice Act 1988 addresses sentences resulting from gross error and falling outside the permissible range. The fact that another judge might have imposed a higher sentence does not establish that threshold.

2. The offending was correctly placed in category 2A, rather than category 1A. The child’s very young age, repeated offending, abuse of trust, recording, offending for gain and planning were relevant. However, grooming was not an additional factor: the grave parental betrayal of trust explained the child’s unquestioning compliance, and adding grooming would double count. Nor did the payments constitute commercial exploitation as contemplated by the guideline, since there was no distribution for money beyond the two directly involved offenders.

3. The judge had properly approached totality. He did not simply add one year to an eight-year starting point for the most serious offence. He adjusted the sentence to reflect the lower-end nature of that offending, the aggravating features and multiplicity of offences, then mitigating factors. It was legitimate to reflect the overall criminality through concurrent sentences headed by the most serious count.

4. YZ was entitled to a one-third reduction because an early guilty plea had in substance been indicated. Barker was properly given an overall 25% reduction: he could receive full credit on charges to which he pleaded guilty promptly, but not on charges which he contested through an unsuccessful application to dismiss.

5. The court corrected ancillary matters. It directed amendment of the records to remove convictions and sentences on count 3, which had not proceeded. Applying R v Bailey [2014] 1 Cr.App.R. (S) 59, it quashed Barker’s victim surcharge order because some offending was overwhelmingly likely to pre-date 1 October 2012.

• Court of Appeal (Criminal Division) — granted the Attorney General leave to make a reference under section 36 of the Criminal Justice Act 1988, but declined to interfere with the custodial sentences: [2019] EWCA Crim 466.
• St Albans Crown Court — on 26 November 2018, HHJ A Goymer imposed effective concurrent sentences of six years’ imprisonment on YZ and six years and nine months’ imprisonment on Barker.