R v MJB

On a reference under section 36 of the Criminal Justice Act 1988, the court must not resentence merely because it would have imposed a different sentence. Intervention is justified only where the sentence falls outside the range reasonably open to the sentencing judge.

For an offence of inciting sexual activity which does not occur, harm is assessed by reference to the sexual activity intended. The court then makes a fact-specific reduction for the absence of the act. A small reduction will usually suffice where the offender was prevented only at a late stage. A larger reduction may be justified where the offender voluntarily desisted early.

The Solicitor General referred as unduly lenient the sentences imposed at the Crown Court at Truro on an offender convicted of two offences of causing or inciting a child under 13 to engage in sexual activity, contrary to section 8(1) of the Sexual Offences Act 2003.

The Recorder imposed four years’ imprisonment on the lead count and a concurrent term of 40 months on the second count. The lead count concerned an unsuccessful incitement to oral sex. The reference challenged the extent of the reductions from the guideline starting points for the absence of the intended sexual activity, mitigation and delay.

1. The court granted leave under section 36 of the Criminal Justice Act 1988 and allowed the reference. The sentencing court’s discretion commands substantial respect, but the total sentence of four years fell outside the range reasonably open to it. The Court of Appeal was therefore entitled to intervene: Attorney General's Reference (R v Azad) [2021] EWCA Crim 1846; Attorney General's Reference (No 4 of 1989) (1990) 90 Cr App R 366.
2. The applicable approach, reflected in the definitive guideline and in R v Reed [2021] EWCA Crim 572, required harm on count 1 to be assessed by reference to the intended oral sex. A reduction was then permissible because that activity did not occur.
3. The Recorder’s reduction from the eight-year starting point to six years on count 1 was, however, excessive. The offender had not voluntarily desisted at an early stage. He would have continued if the child had not impeded him. The absence of the act therefore justified some, but not such a substantial, reduction.
4. The Recorder also gave excessive weight to the available mitigation. Concurrent sentences remained appropriate and totality had to be respected, but the reduction on count 2 from 60 months to 40 months was too great. Taken together, the reductions from an overall starting point of eight years to four years produced an unduly lenient sentence.
5. The court quashed the original sentences and substituted six years’ imprisonment on count 1 and four years two months’ imprisonment on count 2, concurrently. The total sentence was six years’ imprisonment.

• Court of Appeal (Criminal Division) — granted the Solicitor General leave to refer the sentences under section 36 of the Criminal Justice Act 1988; quashed the original sentences and substituted concurrent sentences totalling six years’ imprisonment.
• Crown Court at Truro — on 22 March 2024, convicted the offender of two section 8(1) offences under the Sexual Offences Act 2003. On 10 May 2024, imposed four years’ imprisonment on count 1 and a concurrent 40 months on count 2.