R v BHL

A sentence for grave sexual offending is unduly lenient where, viewed as a whole, it is disproportionate to the offender’s criminality and the harm caused. The sentence for the lead offence must reflect all material aggravating features. The totality principle requires a just and proportionate sentence for all offending and does not justify an excessive reduction from aggregate notional sentences. Previous good character carries less weight as the seriousness of sexual offending increases, although it remains capable of being mitigation. The reference was allowed and the extended sentence was increased.

BHL was sentenced at the Crown Court at Stoke-on-Trent for a course of sexual offending involving a 14-year-old girl, his three-year-old son, communications with other children and indecent images. He had separately received a 30-month sentence at the Crown Court at Isleworth for offending involving a fictitious child, “Paris”.

The Solicitor General referred the Stoke-on-Trent sentence under section 36 of the Criminal Justice Act 1988. The reference challenged the sentence for the lead offence and the reductions made for totality and mitigation. The central issue was whether the resulting extended sentence was unduly lenient.

The court granted leave and allowed the reference to the extent stated below.

1. Lead offence. The offence against CB involved penetration, grooming, a significant age disparity, deception about age, recording and repeated distribution of sexual material, steps to prevent reporting, continued contact and a prolonged course of offending. Although the judge had applied the category 1A guideline and imposed six years for count 3, that sentence did not reflect the whole of the offending and its numerous aggravating features. On the judge’s approach, nine years before discounts was appropriate (paras [16], [23]).
2. Totality. Taking a notional overall sentence, including the offending already sentenced at Isleworth, was permissible. The totality principle requires a sentence that reflects all offending and is just and proportionate. It is not usually appropriate simply to add notional sentences together, but the court must address the offending and the offender’s personal circumstances as a whole. Separate harm and criminality affecting CB, A and the other children meant that the reduction from the aggregate notional sentence was excessive (paras [24]-[25]).
3. Mitigation. BHL’s lack of previous convictions, subsequent employment and progress in prison were recognised as mitigation. However, in sexual offending of the greatest seriousness, previous good character ordinarily attracts less weight. A two-year reduction apart from the guilty plea was excessive; one year was appropriate (para [26]).
4. Disposition. The proper sentence before the guilty-plea discount was assessed at 18 years. After the discount and credit for the sentence already served, and with a further adjustment for totality, the extended sentence was increased from nine years, comprising six years’ imprisonment and three years on licence, to 12 years, comprising nine years’ imprisonment and three years on licence (paras [27]-[29]).

• Court of Appeal (Criminal Division): On the Solicitor General’s reference, leave was granted and the reference was allowed. The sentence was increased to an extended sentence of 12 years: [2023] EWCA Crim 728.
• Crown Court at Stoke-on-Trent: Imposed an extended sentence of nine years, comprising six years’ imprisonment and a three-year extended licence.
• Crown Court at Isleworth: Separately imposed a 30-month determinate sentence for the Paris-related offending.