R v Wayne Morgan

On an Attorney General’s reference under section 36 of the Criminal Justice Act 1988, a sentence is unduly lenient only where it falls outside the range reasonably open to the sentencing judge. The Court will intervene only in exceptional circumstances and retains discretion even after finding undue leniency. Assessment of severe psychological harm and the need for internet-related conditions in a sexual harm prevention order are matters of judgment for the sentencing court. Where intended penile penetration was incited but did not occur, the offence falls within category 2 harm, subject to a reduction for non-completion. Concurrent sentencing must still reflect the totality of the offending. A six-year custodial term was plainly insufficient and was increased to eight years.

The respondent was convicted at the Crown Court at Shrewsbury of multiple sexual offences against a child under 13, including sexual assault and causing or inciting sexual activity. The Recorder imposed concurrent extended sentences producing a total sentence of eight years, comprising six years’ custody and two years on extended licence, together with protective orders.

The Solicitor General referred the sentence under section 36 of the Criminal Justice Act 1988. The Attorney General argued that the harm categories, the offence involving intended penile penetration, the aggravating features and the totality principle required a longer custodial term. A variation of the sexual harm prevention order was also sought. The central issues were whether the sentence was unduly lenient and whether internet-related restrictions were required.

1. The Court applied the established principles under section 36 of the Criminal Justice Act 1988, as summarised in Attorney-General’s Reference (Egan) [2022] EWCA Crim 1751. The first-instance judge is well placed to assess competing sentencing factors. A sentence is unduly lenient only if it falls outside the range reasonably open to that judge. Leave should be granted only in exceptional circumstances and not in borderline cases. Even where undue leniency is established, the Court retains discretion whether to exercise its powers. That discretion was exercised here.
2. The Court rejected the submission that the Recorder was required to find severe psychological harm. That issue involved evaluation and judgment. The Recorder had presided over the trial, observed the complainant’s recorded evidence and considered her victim personal statements. The Court also rejected the submission that internet-related conditions were required in the sexual harm prevention order. That was likewise a matter for the sentencing judge, particularly since internet access had not been a significant feature of the offending.
3. The Recorder was entitled to identify a lead offence, but the sentence had to reflect the overall gravity of the offending, including the number of offences, concurrent sentences and aggravating features. Count 5 was the most serious offence. Because it involved intended penile penetration, it should have been placed in category 2 harm under the relevant guideline, although a reduction was required because the intended activity did not occur. The length of the custodial term was not determined by the extended licence period or statutory release provisions.
4. Even assuming that count 5 could properly have been reduced to five years, increasing the total custodial term to only six years was plainly insufficient. The sentence on count 5 was quashed and replaced with an extended sentence of ten years, comprising eight years’ custody and two years on extended licence. The other sentences remained concurrent and unchanged.

1. Court of Appeal (Criminal Division)—on an Attorney General’s reference under section 36 of the Criminal Justice Act 1988, leave was granted. The sentence on count 5 was quashed and replaced with a ten-year extended sentence, comprising eight years’ custody and two years on extended licence: [2026] EWCA Crim 94.
2. Crown Court at Shrewsbury—following conviction after trial, the Recorder imposed concurrent extended sentences producing a total sentence of eight years, comprising six years’ custody and two years on extended licence.