R v BFZ

In an unduly lenient sentence reference, the question is whether the sentence fell outside the range reasonably available to a sentencing judge who considered all relevant factors. Sentencing is an evaluative, rather than mechanistic, exercise.

A judge may sentence only for offending represented by the counts of conviction, unless further offending is charged in a multiple-incidents count or expressly admitted. Harm categories under a sentencing guideline are determined solely by its stated factors. Psychological harm which is significant but not severe does not create an unstated intermediate category of harm.

An appellate court will be slow to interfere with a judge’s decision to suspend a sentence where the judge heard the evidence and properly applied the relevant guidance. Unreasonable delay after apprehension, causing detriment to an offender, may justify a substantial reduction in sentence.

The offender was convicted at the Crown Court at Gloucester of four counts of sexual assault of a child under 13, contrary to section 7(1) of the Sexual Offences Act 2003. Each count concerned a specific incident involving one of his two children. He received concurrent sentences of two years’ imprisonment, suspended for two years, with unpaid-work and rehabilitation requirements.

The Solicitor General sought leave under section 36 of the Criminal Justice Act 1988 to refer the sentences as unduly lenient. The principal issues were whether the sentencing judge had understated harm, whether the overall term should have exceeded two years because there were two victims, and whether immediate custody was required.

1. Leave to refer the sentences was refused. The applicable test, stated in Attorney-General's Reference No 4 of 1989 [1990] 1 WLR 41, was whether the sentence fell outside the range which a judge considering all relevant factors could reasonably regard as appropriate.

2. The sentencing judge could sentence only for the four specific assaults of which the offender was convicted. Evidence suggesting repeated offending could not enlarge that sentencing basis unless it was reflected in multiple-incidents counts or expressly admitted. The court confirmed the continuing effect of Canavan [1997] EWCA Crim 1773.

3. The judge had been entitled to place harm in category 3. The guideline defined harm exclusively through its stated step 1 factors. Severe psychological harm would place an offence in category 1, but the guideline created no sliding scale by which psychological harm falling short of severe could instead justify category 2.

4. Although the Solicitor General was not bound by the Crown Court concession if she explained a departure from it, the proposed late reliance on category 1 harm was neither fair nor just. The trial judge had heard the evidence and the victims’ statements, and the appellate court could not say that his evaluative conclusion was wrong.

5. A substantial uplift from the one-year starting point was justified because there were two victims. However, a total term of two years was still within the reasonable sentencing range. The fact that consecutive sentences could have produced a longer term did not establish clear evaluative error.

6. The decision whether to suspend the sentence was for the sentencing judge, who had applied the relevant guidance carefully. The court also regarded the ten-year, unexplained delay between interview and proceedings as highly relevant mitigation. It inevitably caused detriment to the offender and justified a significant reduction in what would otherwise have been appropriate.

• Court of Appeal (Criminal Division): On a reference by the Solicitor General under section 36 of the Criminal Justice Act 1988, refused leave to refer the sentence as unduly lenient.
• Crown Court at Gloucester: On 11 April 2024, convicted the offender of four offences of sexual assault of a child under 13. On 9 May 2024, imposed concurrent two-year sentences of imprisonment, suspended for two years.