R v Mark Barnfather

With the leave of the single judge, the appellant appeals against a total sentence of three years imposed following his plea of guilty to each of the following counts: (1) attempting to engage in sexual communication with a child (one year concurrent); (2) attempting to incite sexual activity with a child (two years concurrent); (3) attempting to meet a child following sexual grooming (three years concurrent). Notification requirements and a Sexual Harm Prevention Order ("SHPO") were also imposed on an indefinite basis.

The appellant pleaded guilty to these charges on 22 November 2024; he was sentenced on 7 March 2025.

On 2 March 2024 the police were contacted by a paedophile vigilante group known as “Predator Exposure”. On attendance the police were informed by members of the group that they had detained the appellant after he had made contact, via Facebook, with a decoy posing as a 14-year-old female child using the name "Sophie Brown". The group provided a bundle of documents containing copies of the communications between the appellant and the decoy, which occurred over a period of around six days between 24 February and 2 March 2024. The appellant was arrested and a number of electronic devices seized.

A download of the appellant's telephone provided access to his communications with the decoy. This showed that it was the appellant who made first contact, that, within a few exchanges, "Sophie" had indicated she was 14, and that the appellant was sent an image of "Sophie", from which it was immediately apparent that she was under 16. The appellant nevertheless continued with the communications which quickly became sexual.

Initially the appellant asked how "Sophie" looked in a swimsuit and then went on to discuss sharing a bath. He later explained to "Sophie" how to “pleasure” herself and sent numerous links to various pornographic sites. The conversation continued to escalate, with the appellant sending photographs of vibrators and of himself in his underwear, and asking for a picture of "Sophie" in her underwear or topless. The appellant then returned to the conversation of "Sophie" masturbating herself and described to her how she should do this; he said "put your fingers in and slowly move around"; he also sent a photograph of his penis and talked about masturbating himself whilst speaking to her. The appellant spoke of engaging in sexual intercourse with "Sophie", and sought to make travel arrangements for them to meet in Blackpool, discussing going to the cinema, or to his flat where they could "chill" or engage in sexual activity.

It was on the day of the arranged meeting that those connected with the group confronted the appellant outside his home address. That confrontation was filmed and live streamed on Facebook. When challenged, the appellant denied knowing that he was meeting a 14-year-old child. In interview, the appellant gave no comment.

The appellant was 47 at the date of the sentencing hearing and of previous good character.

It was common ground that the offending fell within the higher categories of each guideline; in particular the offending at count 3 was serious because of the attempt to meet the decoy set against communications which indicated that penetrative sexual activity was intended.

A comprehensive pre-sentence report ("PSR") was available, which set out fully the applicant's personal circumstances, including the mental/neurological disorders from which he suffered. Having referenced this background, the Recorder made clear that she had considered the guideline for offenders suffering with mental disorders/neurological impairments; she also noted the appellant's lack of previous convictions and the difficulties he was likely to encounter in a custodial environment; the Recorder further indicated that the fact that these offences were attempts would be considered, although any reduction had to be limited given the facts of the case.

The Recorder took the view that she should impose concurrent sentences reflective of the totality of the offending. Adopting this approach, the Recorder concluded that the sentence after trial for all offences was one of five years. She did not consider there were any additional aggravating features that were not inherent in the offences themselves. The Recorder then went on to reduce the sentence by six months to reflect the mitigation available and the fact that these were attempts, before applying a reduction of one-third for the appellant's early indication of plea. Notification requirements and an SHPO, both of indefinite duration, were also imposed.

At a review hearing on 30 April 2025, the Recorder agreed that the sentence imposed on count 1 was unlawful (the maximum penalty for that offence being one of two years). Revisiting the sentence, the Recorder indicated that the lead offence was count 3, although she took account of all the offending when passing sentence upon it; correcting the earlier error, the sentence was restructured in the way described in the opening paragraph to this judgment. In explaining her approach, the Recorder treated count 1 as falling within the highest category for culpability and harm, with a starting point of 18 months and a range of up to two years; observing that the sexual activity relevant to count 2 was penetrative masturbation, she found that offence fell within categories 1A and 2A, warranting a nominal starting term of four years; and at count 3, set in the context of the exchange of sexual images and the clear intention of penetrative sex, was a category 1 offence, with a starting point of four years and a range between three and seven years. Treating count 3 as the lead offence, aggravated by the other counts but also reducing the overall term for totality, the Recorder again arrived at a global term of five years for all offences (although now imposed solely on count 3). Having regard to the appellant's personal mitigation and allowing a limited reduction for the fact that these were attempts, the Recorder again reduced this by six months, before applying a full one-third reduction for credit for plea, resulting in a final term of three years.

The Recorder had also been asked to revisit the imposition of an indefinite SHPO in light of the guidance in R v McLellan, R v Bingley [2017] EWCA Crim 1464; she declined to do so, however, explaining:

The appellant contends that the custodial sentence was manifestly excessive as the available mitigation should have led to a greater reduction, potentially to the level where the sentence could have been suspended. He further argues that the SHPO should not have been made for an indefinite period of time as there was no evidence to suggest that he posed a high risk of re-offending nor was there anything particularly exceptional about the facts of the case that justified an indefinite order.

No issue is taken with the categorisation of these offences under the relevant guidelines, nor with the Recorder's approach in passing concurrent sentences with an uplift in the term imposed on the lead offence (count 3) to reflect the totality of the offending. The appellant makes the point there is a significant overlap between all the offences, but accepts that is reflected in the passing of concurrent sentences; we do not consider the Recorder can be criticised for the 12-month increase she imposed on the four year starting point for the (lead) count 3 offence.

The real issue taken with the Recorder's approach relates to the reduction allowed for mitigation. On behalf of the appellant, it is emphasised that he had no previous convictions, and it is submitted that this, taken together with the evidence of mental disorder outlined within the PSR, his obvious vulnerabilities within a custodial setting, and the lack of risk he posed to the public, meant this sentence was manifestly excessive.

The psychiatric report available to the Recorder (which we have also read) refers to the appellant's difficulties in coping following the death of his grandfather (with whom he had lived since he was six) and makes a generalised observation regarding the vulnerability of those with autism to the commission of sexual offences. It did not, however, provide a more specific basis for considering that the offences for which the appellant fell to be sentenced were linked to his autism spectrum condition or other mental health disorder. The point was made that the appellant would find a custodial sentence traumatic and would be vulnerable within the prison environment, albeit that the author also noted that the prison healthcare team would be able to monitor the appellant's mental health state, optimise medication, and offer brief psychological therapy. Similarly, although the PSR referred to the appellant's apprehension regarding an immediate custodial sentence, he was assessed as being at low risk of self-harm; he was, however, considered to pose a medium risk of committing online/contact offences and of committing a seriously harmful offence, being assessed as posing a medium risk of serious harm to female children.

The Recorder took into account the appellant's lack of previous convictions, the fact that these were attempts, and all that had been said on the appellant's behalf by way of personal mitigation. She had regard to what was said about his mental health disorders, the difficulties he had experienced following the death of his grandfather, and his potential vulnerabilities if sentenced to a term of immediate custody; she referred to the contents of the PSR and to the mental health diagnoses, also confirming that she had read the psychiatric report obtained on the appellant's behalf. In particular, the Recorder expressly took into account the guidance provided in the overarching guideline on sentencing offenders with mental disorders but, as that guideline makes clear, in assessing whether an impairment or disorder has any impact on sentencing, the approach must always be individualistic and focused on the issues in the case. Having thus had regard to all relevant considerations, the Recorder reached the view that a reduction of six months appropriately represented the mitigating features in this case and the fact that these were attempts. We cannot say that gave rise to an error of approach; on the information provided, that was a view the Recorder was entitled to reach.

Notwithstanding the inchoate nature of each of the offences, these were serious matters; the offending passed the custody threshold and, accepting what was said regarding the possible impact on the appellant, the Recorder was entitled to reach the conclusion that a significant term of imprisonment was both necessary and proportionate. Standing back to consider the appellant's offending, set in the context of his personal mitigation (encompassing all the features relied on before the Recorder and on appeal), we cannot say this sentence was manifestly excessive.

Turning to the imposition of an indefinite SHPO, we note the guidance of this court in McLellan where it was made clear that an SHPO should not be made for an indefinite period unless the court, after careful consideration, was satisfied of the need to do so. When initially making the order in the present case, the Recorder did not explain why she had considered this was required to be of an indefinite duration; that was, however, something she sought to correct on the review hearing, when she made clear she considered it necessary given the speed with which the appellant had sought to engage with a 14-year-old girl, sending and requesting photographs and encouraging the child to participate in sexual activity, including meeting for penetrative sex.

For the reasons provided by the Recorder, we accept the making of the SHPO was necessary in this case: the PSR supported the view that the appellant posed a medium risk in this regard, and the nature of the communications with "Sophie", viewed alongside the appellant's continued attempts to minimise his conduct (saying he believed "Sophie" was 18 when the evidence demonstrated that was untrue) warranted an order for the protection of the public. Having regard to the terms of that order and the protection otherwise provided by the ongoing notification requirements, however, it was disproportionate for the SHPO to be imposed for an indefinite period (not least given that, over time, the terms would be likely to require updating in any event). In our judgement, a proportionate term in this case would be one of 10 years.

For the reasons explained, we allow the appeal in relation to the duration of the SHPO, quashing the order made for an indefinite period and substituting for it an order in the same terms but limited to a period of 10 years, deemed to have commenced on 7 March 2025. We otherwise dismiss the appellant's appeal.

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Email: rcj@epiqglobal.co.uk