R v Mark Barnfather

Serious inchoate sexual offences may justify a substantial custodial sentence where the custody threshold is passed and the sentencing judge has individually assessed mental disorder, personal mitigation, the fact of attempt and custodial vulnerability. No fixed reduction follows from good character or mental disorder. An SHPO may be necessary for public protection, but an indefinite duration requires careful consideration and must remain proportionate. The continuing protection provided by notification requirements and the order’s terms may make a fixed period appropriate. An indefinite order was therefore quashed and replaced by a 10-year order.

The appellant pleaded guilty at the Crown Court at Preston to attempting to engage in sexual communication with a child, attempting to incite sexual activity with a child and attempting to meet a child following sexual grooming. The Recorder imposed a total sentence of three years, with count 3 as the lead offence, and made notification requirements and an SHPO indefinitely.

On review, the Recorder corrected an unlawful sentence on count 1 but maintained the overall sentence and indefinite SHPO. The appellant appealed against the custodial sentence as manifestly excessive and against the indefinite duration of the SHPO. The central issues were whether the sentencing judge had properly assessed the mitigation and whether an indefinite SHPO was necessary and proportionate.

1. Outcome. The appeal was allowed only as to the duration of the SHPO. The indefinite order was quashed and an order in the same terms, limited to 10 years from 7 March 2025, was substituted. The appeal against sentence was dismissed.
2. Custodial sentence. The offence categorisation was not challenged. The Recorder was entitled to impose concurrent sentences with an uplift on the lead offence to reflect the totality of the offending. The 12-month uplift from the four-year starting point for count 3 was not criticised.
3. Mental disorder and mitigation. The Recorder had considered the appellant’s good character, the fact that the offences were attempts, his mental health disorders, the death of his grandfather, and his likely vulnerability in custody. The relevant sentencing guideline required an individualistic approach focused on the issues in the case. The psychiatric evidence did not provide a specific basis for linking the offending to the appellant’s autism or other disorder. The available information entitled the Recorder to allow a six-month reduction. The offences remained serious, passed the custody threshold, and justified a significant term that was necessary and proportionate.
4. SHPO. The guidance in R v McLellan, R v Bingley [2017] EWCA Crim 1464 required careful consideration before imposing an indefinite SHPO. The Recorder’s explanation on review established that an order was necessary, given the medium risk identified in the PSR, the rapid escalation of the communications, the requests for sexual images and activity, and the arrangements to meet for penetrative sex. Nevertheless, an indefinite duration was disproportionate, particularly because the order and continuing notification requirements provided protection and the terms might require updating. Ten years was proportionate.

1. Crown Court at Preston: The appellant pleaded guilty and was sentenced on 7 March 2025. On 30 April 2025, the Recorder corrected the unlawful sentence on count 1 but retained a total custodial term of three years and an indefinite SHPO.
2. Court of Appeal (Criminal Division): Under [2025] EWCA Crim 1449, the appeal was allowed as to the SHPO’s duration, which was reduced to 10 years. The sentence appeal was otherwise dismissed.