R v Conor Mulhern

A sentence is not unduly lenient merely because another judge, or the appellate court, might have imposed a somewhat longer term. Where any difference is relatively modest, and the sentence is a significant immediate custodial term that properly reflects very serious offending, appellate intervention is not justified.

The assessment remains one of undue leniency. It is not a resentencing exercise conducted according to the sentence the appellate court would itself have selected.

The offender pleaded guilty to voyeurism, possession of extreme pornography, and offences involving Category C indecent images of a child. At the Crown Court at Kingston, he received concurrent terms totalling 12 months’ immediate imprisonment, reduced from 18 months to reflect his early guilty pleas.

The offending involved prolonged covert recording of a child known to and trusted by the offender, including recordings in her home. The Solicitor General sought leave under section 36 of the Criminal Justice Act 1988 to refer the sentence as unduly lenient. He contended that the judge should principally have used the guideline for production of indecent images of children rather than the voyeurism guideline.

The central issue was whether the immediate 12-month sentence was unduly lenient.

1. Leave to refer the sentence was refused. The court held that the total sentence of 12 months’ immediate imprisonment was not properly describable as unduly lenient.

2. The offending was extremely serious. It involved years of intrusive covert surveillance of a child, a substantial collection of still and moving images, and a grave abuse of a relationship of trust. The harm to the victim could be lasting. Immediate custody was therefore necessary.

3. The Solicitor General submitted that the sentencing judge had treated the case principally as prolonged voyeurism, rather than as production of a large number of Category C indecent images. On that submission, the appropriate pre-plea sentence would have been three years’ custody, rather than 18 months. The court observed that even a three-year pre-plea sentence would have produced a two-year sentence after credit for the guilty plea, which could lawfully have been suspended.

4. The court accepted that some judges, and perhaps members of the court itself sentencing at first instance, might have imposed a somewhat longer term. That did not establish undue leniency. Any proper difference was relatively modest, whereas the immediate custodial sentence imposed was significant and carried substantial consequences for the offender.

5. The Solicitor General’s application under section 36 of the Criminal Justice Act 1988 was therefore misconceived, and leave was refused.

• Court of Appeal (Criminal Division)—refused the Solicitor General leave to refer the 12-month sentence as unduly lenient.
• Crown Court at Kingston—on 13 February 2025, imposed concurrent sentences totalling 12 months’ immediate imprisonment following guilty pleas.