R v JJH

For a reference under section 36 of Criminal Justice Act 1988, a properly given Goodyear indication does not limit the Law Officers’ discretion to refer a sentence. Under the relevant sexual-offence guideline, a victim who was asleep and/or intoxicated is particularly vulnerable due to personal circumstances. That factor places the offence in category 2 harm; category 3 applies only where category 1 and 2 factors are absent. The same approach applies to assault by penetration. Appellate interference requires the high threshold for an unduly lenient sentence.

This was a reference by the Solicitor General under section 36 of Criminal Justice Act 1988 against a sentence imposed at the Crown Court at Liverpool. The offender pleaded guilty to assault by beating, assault by penetration and stalking causing serious harm or distress. The total sentence was 25 months’ imprisonment, with concurrent terms and restraining orders.

The prosecution contended that the sexual offence was category 2B because the victim was asleep and intoxicated. The sentencing judge treated it as category 3B and had given a Goodyear indication. The central issues were whether the indication affected the reference and whether the guideline categorisation had made the sentence unduly lenient.

Disposition. The Court granted leave and allowed the reference to the extent stated below.

1. The use of a Goodyear indication did not restrict the Law Officers’ discretion to refer the sentence. The procedure had been followed, but the prosecution had expressly argued that the sexual offence was category 2B and had neither supported nor approved the indication: Goodyear [2005] EWCA Crim 888.
2. The relevant offence-specific guideline treats a victim who was asleep and/or intoxicated as particularly vulnerable due to personal circumstances. That is a category 2 harm factor. Category 3 applies only where category 1 and category 2 factors are absent. The court held that the same structure applied to assault by penetration as to rape. The approach was consistent with Bunyan [2017] EWCA Crim 872, Sepulvida-Gomez [2019] EWCA Crim 2174 and Behdarvani-Aidi [2021] EWCA Crim 582.
3. The reasoning in R v McGregor [2025] EWCA Crim 1737, including the discussion of Attorney-General’s Reference (R v BN) [2021] EWCA Crim 1250 and R v Lister [2022] EWCA Crim 1560, supported the conclusion that a sleeping victim, particularly in their own bed, is unable to understand, resist or summon help. Additional vulnerability did not cancel the vulnerability arising from sleep or intoxication.
4. The court applied the high threshold for an unduly lenient sentence described in R v Solomon [2022] EWCA Crim 1333. A sentence must be not merely lenient but unduly so, having regard to gross error, substantial departure from ordinary sentencing norms and the statutory purposes of maintaining public confidence.
5. The sexual offence was category 2B, with a starting point of six years and a range of four to nine years. The miscategorisation made the sentence unduly lenient. The sentence on count 3 was quashed and replaced by five years’ imprisonment. The sentences on counts 2 and 4 remained as imposed, making the total sentence five years.

1. Court of Appeal (Criminal Division) — In [2026] EWCA Crim 1182 , on a reference under section 36 of Criminal Justice Act 1988, granted leave, quashed the sentence on count 3 and substituted five years’ imprisonment.
2. Crown Court at Liverpool — On 21 January 2026, imposed a total sentence of 25 months’ imprisonment, with concurrent sentences of six weeks, 25 months and five months, together with restraining orders.