R v Thomas Lunn

In sentencing for an absolute sexual offence against a child under 13, a reasonable belief that the child was older and consenting does not remove criminal liability, but may justify a substantial reduction from the guideline starting point. The starting point already incorporates deterrence and should not be increased again merely to achieve that purpose. Additional offences in the same incident must be reflected, either by aggravating the lead offence or through totality, while avoiding double counting where conduct has already affected categorisation. On an Attorney General’s reference, the question is not whether another judge might impose more. Where the sentencing judge gives cogent reasons, has assessed the witnesses directly, and any error would warrant only a minor adjustment, the Court of Appeal may refuse intervention.

The offender pleaded guilty to rape of a child under 13, contrary to section 5 of the Sexual Offences Act 2003; assault by penetration of a child under 13, contrary to section 6 of that Act; and taking an indecent photograph of a child, contrary to section 1 of the Protection of Children Act 1978.

Following a Newton hearing, the Crown Court at Woolwich found that he reasonably believed the victim was aged 16 and consented to the sexual activity. It imposed a sentence for offenders of particular concern comprising four years and six months’ custody with a one-year further licence period, with concurrent sentences on the other counts.

The Solicitor General referred the sentence under section 36 of the Criminal Justice Act 1988 as unduly lenient. The central issues were the effect of the guideline starting point, deterrence, the offender’s reasonable beliefs, the additional offences, totality and the proper threshold for appellate intervention.

Leave refused. The Court left the sentence in place. It regarded the sentence as lenient, but did not consider intervention justified.

1. The Crown Court’s factual findings could not be disturbed. The offender reasonably believed that the victim was 16 and consenting, and the victim’s initiation of the sexual activity was relevant to assessing criminality. The case was therefore far from the typical case to which the ten-year starting point applied.
2. The ten-year starting point for rape of a child under 13 already incorporated the necessary deterrent element. It was directed to the typical case in which the offender had no reasonable belief that the child was older than 13 or that the child was consenting. The unusual facts and the offender’s reasonable beliefs justified a significant downward adjustment, while leaving the absolute nature of the offence under section 5 of the Sexual Offences Act 2003 intact.
3. The assault by penetration involved additional criminality. It could be treated as aggravating the lead count or addressed at the totality stage. The Court adopted the former approach and considered that an upward adjustment of about one year was appropriate. By contrast, a significant further adjustment for the indecent-photograph offence risked double counting because the filming had already placed the rape in the higher culpability category.
4. The sentencing judge’s direct assessment of the witnesses at the Newton hearing required considerable respect. The offender’s good character, frank acceptance of responsibility and genuine remorse also provided substantial mitigation.
5. The question on an unduly lenient sentence reference was not whether another judge might reasonably have imposed a higher sentence. The judge had given cogent reasons for leniency. Even if the sentence had been unduly lenient, the excess would have been minor and the Court would not intervene merely to make minor adjustments.

1. Crown Court at Woolwich: Following a Newton hearing, HHJ Ruth Downing sentenced the offender on 30 January 2026 to a sentence for offenders of particular concern, with concurrent sentences on the remaining counts.
2. Court of Appeal (Criminal Division): On a reference under section 36 of the Criminal Justice Act 1988, the Court refused leave and left the sentence undisturbed: [2026] EWCA Crim 934 .