R v Jacek Brzozowski

When a sentencing guideline classifies culpability by reference to specified features, the court must assess the evidence for each feature and may adopt a nuanced, fact-sensitive approach. A victim’s intoxication does not by itself establish that the offender used alcohol to facilitate the offence. Vulnerability does not necessarily establish specific targeting. Age disparity will ordinarily be significant in many cases, but chronological age may not tell the whole story where the offender’s particular characteristics are relevant. The guideline does not require the higher category where the evidence does not establish the relevant features. A sentence at the bottom of the permissible range may be arguably unduly lenient, yet the appellate court may decline to intervene.

The Solicitor General sought leave for an Attorney General reference under section 36 of the Criminal Justice Act 1988 concerning a sentence imposed by the Crown Court at Sheffield on 21 May 2025. The respondent had pleaded guilty to one offence of sexual activity with a child contrary to section 9 of the Sexual Offences Act 2003. He received 21 months’ imprisonment, suspended for two years.

The prosecution submitted that the offence fell within category 1A of the relevant sentencing guideline. The sentencing judge treated it as category 1B, towards the top of that category, having regard to the evidence, the offender’s characteristics and the circumstances of the offending. The central issue was whether category 1A was required and whether the resulting sentence was unduly lenient.

Disposition. Leave to refer was granted, but the reference was dismissed. The sentence was arguably lenient and it was properly arguable that it was unduly lenient, but the court was not persuaded that it should intervene.

1. The relevant sentencing guideline provided a structured approach to assessing seriousness. The court was entitled to examine whether the evidence established each alleged category 1A culpability feature. None of the features relied upon was determinative in isolation.
2. There was no evidence that the offender himself used alcohol on the victim to facilitate the offence. The victim’s consumption of alcohol was properly treated as an aggravating feature, but the evidence did not establish that she was highly intoxicated when the offence occurred. The offence occurred early in the wider sequence of events, and the offender might not have known of the later pattern of abuse.
3. Although the victim was undoubtedly vulnerable, the evidence did not obviously or necessarily establish that the offender had specifically targeted her as a particularly vulnerable child. It was therefore open to the sentencing judge not to treat that category 1A factor as established.
4. The age disparity was borderline. In many, if not most, cases a disparity between a 21-year-old offender and a 15-year-old victim would be significant. In this case, however, a nuanced assessment could take account of the offender’s particular characteristics and functioning, in addition to chronological age. The court emphasised that its decision was fact-specific and did not establish a general precedent, save for the observation that chronological age may not tell the whole story.
5. It was properly open to the sentencing judge to place the offence in category 1B, towards the top of that category, while recognising the victim’s vulnerability and the availability of alcohol as aggravating features. The sentence lay at the bottom end of the range that could properly be imposed and was capable of suspension given the judge’s assessment of rehabilitation prospects.

1. Court of Appeal (Criminal Division): On a reference under section 36 of the Criminal Justice Act 1988, leave was granted but the reference was dismissed: [2025] EWCA Crim 1113.
2. Crown Court at Sheffield: Following the respondent’s guilty plea to an offence contrary to section 9 of the Sexual Offences Act 2003, the court imposed 21 months’ imprisonment, suspended for two years, on 21 May 2025.