R v Simon Timothy Mallen

In a sentence appeal involving serious sexual offences against children, sentence must reflect the actual offending, totality and the risk prevented by intervention. A single relatively brief incident involving two children, without touching of genitalia or breasts, did not justify an uplift to nine years; seven years was appropriate. Planned penetrative abuse may warrant a severe sentence even where no abuse occurs, if intention, preparation and risk are proved. The fact that an intended event would not have occurred for reasons unknown to the offender does not materially reduce sentence. Sentence disparity is assessed by whether informed right-thinking members of the public would consider that something had gone wrong in the administration of justice. An extended sentence may run consecutively within the statutory maximum and may coexist with a Sexual Harm Prevention Order.

The applicant was convicted after trial of two sexual assaults on children under 13 and arranging or facilitating planned penetrative child-sex offending. He received concurrent nine-year custodial terms for the assaults and a consecutive nine-year term for the arranging offence, with consecutive four-year extended licence periods. The total sentence was 18 years’ custody and eight years on licence. A Sexual Harm Prevention Order was also imposed.

He challenged the sentence as manifestly excessive, relying on the brief nature of the assaults, the fact that the planned party did not occur, disparity with co-defendants, the extended licence periods and totality. The central issues were the proper sentences for the assaults and the uncompleted planned offence, the disparity argument, and whether the extended sentence could coexist with the ancillary order.

Disposition

The court granted leave to appeal and allowed the sentence appeal in part. The sentences on counts 1 and 2 were reduced to seven years, concurrent. The sentence on count 3 was reduced to seven years, consecutive to counts 1 and 2. The extended licence periods and other orders remained unchanged.

1. Counts 1 and 2. The offences were correctly categorised as Category 2A, with a four-year starting point and a three-to-seven-year range. However, the offending comprised a single relatively brief incident involving two children, with no touching of genitalia or breasts. The uplift to nine years was therefore manifestly excessive, although a six-year sentence for one victim would not have been excessive. The appropriate sentence for the two offences, having regard to totality, was seven years.
2. Count 3. A nine-year sentence on that count alone would have been severe but not manifestly excessive. The absence of actual penetration did not materially reduce the sentence. The applicant had intended the event to occur, had made substantial preparations, and the police intervention prevented the risk to the real child. The possibility that the child would have attended another party was not known to the applicant and did not justify reduction. The sentence was reduced to seven years because the overall custodial term of 18 years was too high, while consecutive sentences remained appropriate.
3. Disparity and totality. The disparity test asks whether right-thinking members of the public, fully informed of the relevant facts and circumstances, would consider that something had gone wrong in the administration of justice. That threshold was not met. The co-defendants had materially different roles, conduct, pleas and findings of dangerousness.
4. Extended sentence. Consecutive extended sentences were lawful because the aggregate licence extensions did not exceed the eight-year maximum in the relevant section of the Criminal Justice Act 2003. The court distinguished Thompson and Cummings [2018] EWCA Crim 639, which concerned exceeding that maximum. An extended sentence and a Sexual Harm Prevention Order made under section 345 of the Sentencing Act 2020 could coexist. Although they overlapped to some extent, they served different protective functions and no choice between them was required. The extended licence period was within the sentencing judge’s discretion in light of the evidence of dangerousness.

• Court of Appeal (Criminal Division): On 19 September 2023, leave to appeal was granted. The sentence appeal was allowed in part; the custodial sentences on counts 1, 2 and 3 were reduced to seven years, with count 3 remaining consecutive. The extended licence periods and other orders were unchanged.
• Trial court: The applicant was convicted on 23 November 2021 and sentenced on 23 January 2023 to concurrent nine-year terms for counts 1 and 2 and a consecutive nine-year term for count 3, together with consecutive extended licence periods totalling eight years.