Neutral Citation Number: [2026] EWCA Crim 934 IN THE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM THE CROWN COURT AT WOOLWICH Her Honour Judge Ruth Downing U20251363 | Case No: 202600774 A2 |
Royal Courts of Justice
Strand, London
WC2A 2LL
Before:
LORD JUSTICE STUART-SMITH
MRS JUSTICE CUTTS
and
RECORDER OF LINCOLN
(HIS HONOUR JUDGE HIRST)
(Sitting as a Judge of the CACD)
REFERENCE BY THE ATTORNEY GENERAL UNDER s.36 CRIMINAL JUSTICE ACT 1988
REX
-v-
THOMAS LUNN
Mr B Lloydappeared on behalf of the Attorney General
Mr C Carse appeared on behalf of the Offender
Approved Judgment
Lord Justice Stuart-Smith:
The provisions of the Sexual Offences (Amendment) Act 1992 apply to this offence. Under those provisions where an allegation has been made that a sexual offence has been committed against a person, no matter relating to that person shall during that person's lifetime be included in any publication if it is likely to lead members of the public to identify that person as the victim of that offence. This prohibition applies unless waived or lifted in accordance with section 3 of the Act. For the avoidance of any doubt, we do not waive or lift the prohibition.
His Majesty's Solicitor General applies to refer a sentence which she regards as unduly lenient. The sentence was imposed on 30 January 2026 in the Crown Court at Woolwich by HHJ Ruth Downing. The offender had pleaded guilty in circumstances which entitled him to a full one-third reduction on account of his plea. He pleaded guilty on a basis that had not been accepted by the prosecution, which led the judge to conduct a Newton hearing, the details of which we will explain later.
The sentence imposed by the judge was as follows:
Under count 1, which was an offence of rape of a child under 13, contrary to section 5 of the Sexual Offences Act 2003, upon his plea of guilty, the offender was sentenced to a sentence for offenders of particular concern, comprising 4 years 6 months' custody with 1 year further licence period.
On count 2, which was an offence of assault by penetration of a child under 13, contrary to section 6 of the Sexual Offences Act 2003, upon his plea of guilty he was sentenced to 18 months' imprisonment concurrent.
On count 3, which was an offence of taking an indecent photograph of a child, contrary to section 1 of the Protection of Children Act 1978, upon his plea of guilty, he was sentenced to 24 months' imprisonment concurrent.
The total sentence was therefore a sentence for offenders of particular concern, comprising a custodial period of 4 years 6 months and 1 year further licence period.
The facts
At about 3.00 pm on Monday 9 June 2025, the offender (then aged 24) drove to a car park to engage in sexual activity, by prior agreement, with a girl called "LB" (a 16-year-old schoolgirl). This was the second occasion on which those two had met. They had met in the same place three days earlier and engaged in sexual activity then. No complaint was made by LB.
On 9 June 2025, LB attended the car park again in order to have sex with the offender again. She came with her friend, the victim of the index offending (who we shall call "V"). V was 12 but, as the judge found, gave the appearance of being much older. V was introduced to the offender. She then left, leaving LB and the offender in his car in the car park. V was aware that LB and the offender planned to engage in sexual activity. After about 30 minutes, V returned to the car. Thereafter, the offender penetrated V's mouth with his penis (count 1) and penetrated her vagina with his fingers (count 2). Her account was, "He shoved it all down my throat and I couldn’t breathe…l was gagging". He started touching her "down there" while LB was sucking his penis. The offender filmed a video of the victim sucking his penis (count 3).
V in her evidence said the offender thought she was 13 and that she did not want the offender to do these things to her.
The offender had pleaded guilty to counts 1 and 2 on a written basis which stated:
He had not spoken to or communicated with V prior to meeting her on 9 June 2025.
He did not cause in anyway V to attend the Ten Pin Bowling Alley in Bexley Heath on 9 June 2025 and was not aware that she would be in attendance until he saw her in company with LB at the bowling alley car park.
He assumed V was 16 years old due to the following:
At no time was V's age discussed or mentioned;
She was in company which LB who he knew to be 16 years old;
He understood her to be LB's best friend and assumed they were in the same school year;
When they met it was during term time and V was dressed in casual clothes and so he assumed she was on GCSE study leave like LB was;
He was also made aware that both girls had had sexual relations with another male prior to him and therefore that indicated to him that V was of a consensual age.
V initially left the car park (he presumed going up to the bowling alley) and he and LB engaged in sexual activities while she was absent. He did not engage with V until after she had made a persistent request to enter the vehicle.
V entered the rear seats of the vehicle where V and LB were seated.
He initially attempted to get V to give LB and him some privacy, asking her what he needed to do for her to leave them alone. V stated she would leave if he purchased her alcohol and, wanting to further engage sexually with LB, he did so.
Notwithstanding the purchase of alcohol, V did not leave the vehicle.
V initiated physical contact while he was sitting with LB by stroking his arm and being tactile.
V initiated sexual contact by saying "my turn" whilst LB was performing oral sex on him before then performing oral sex on him herself.
While he accepted that consent provided no defence, V both consented to and initiated the act of oral sex.
He did not force V's head down causing his penis to enter her mouth further. That action was carried out by LB. V was aware that this was done by LB and immediately afterwards reacted by jokingly confronting her about it.
He accepted touching V's vagina over clothing before moving his hands inside her clothing and digitally penetrating her with his finger.
V indicated her consent to the digital penetration by saying she enjoyed it and preferred one of the methods of digital penetration he had engaged.
He did not ejaculate at any point whilst V was in the vehicle, and when V abruptly stated she needed to go home he honoured her request.
In the light of that basis of plea a Newton hearing was held by the judge in relation to the details of what happened. After hearing evidence, the judge rejected V's account that the offender had asked her age. The judge accepted the offender's account that he had not specifically asked the victim of her age but had assumed she was 16 years old. The offender had thought so because she was LB's best friend and they were probably in the same school year. V appeared the more confident of the two girls. She was dressed similarly in leggings and a top and had an expensive designer handbag.
The judge also rejected V's account that the offender had offered to drop her home if she would "suck his cock". The judge found that although the offender did buy V a bottle of Vodka, it had been with the intention of getting her to leave him and LB alone in the car so they could continue sexual activity and not to facilitate sexual contact with V. The judge rejected V's account that after she had consumed the vodka the offender had forced her head down onto his penis and that he had penetrated her vagina with his finger without obtaining her consent. The judge found the offender's account that the victim said "it's my turn" was accurate, and that it was the victim who initiated the sexual activity.
The judge had to resolve whether the offender did know that the victim was not 16 years of age and whether there was consent. The judge noted that in law ostensible consent was vitiated because the victim was under 13. The judge noted that V's ABE evidence portrayed visually a young woman and not a pre-teenager. The judge noted that it was "interesting" to see the victim "utterly relaxed" lying on the sofa in interview. That "ease and ability to answer the questions" was important when assessing evidence. The victim appeared to be "forceful and forthright". She was not a reluctant witness and she was "never embarrassed". The judge observed that anybody seeing V would struggle to accept that she was only 12. In her ABE interview V was not asked why she said she thought the offender thought she was 13 and not 12. The judge found that V's description in a further witness statement made later was unhelpful and confused and not easy to fit into the timescales of what took place. The judge held that the offender's evidence was lucid and "candid beyond measure and more convincing albeit showing some immaturity". The judge was not sure that V ever said she was aged 13.
The judge held that it was reasonable for the offender to conclude that the victim and LB were in the same year and likely the same age. It was reasonable to conclude that the victim was willing to engage in those types of activities. The judge reminded herself of the offender's good character, candour and insight, although overall immaturity. There was a reasonable belief that V was 16 and that there was consent to the acts that took place. The sexual encounter was initiated by V, it was not forced. The judge was satisfied that the offender believed V consented and she did consent.
No aggravating features were identified other than the factors relevant to harm and culpability. The following mitigating features were identified: (a) remorse; (b) age/ level of maturity; (c) no previous convictions.
The offender
The offender was of previous good character. He wrote a letter to the judge in which he said he was living in immense shame and guilt. He accepted that what had happened was his fault because he had put himself at risk by making an assumption where he should have asserted caution. He described his assumption as the biggest mistake he had ever made or would make. It had come as a complete shock to him and it was not in his nature to offend as he had. Nonetheless, he reiterated that there was no-one else to blame and that what had happened was his responsibility. He would never make the same mistake or allow himself into such a situation where he was at risk again.
The sentencing hearing
Pre-sentence report
The judge had and clearly paid close attention to a pre-sentence report. However, its usefulness was limited by the fact that it was written before the Newton hearing and was based upon V's account of what had happened. Nonetheless, we have read it and taken into account.
Victim impact statement
V's mother made a statement, which again we have read and take fully into account.
The sentencing remarks
We make two preliminary observations about the sentencing remarks. First, the judge categorised the three offences as follows:
Count 1, category 3A. Category 3 for harm, because no factor in categories 1 or 2 were present. Category A for culpability because of the filming of V. That meant the starting point was 10 years' custody with a category range of 8 to 13 years.
Count 2, category 3B. Category 3 for harm as for count 1 and category B for culpability, because the penetration was not subject to the aggravating feature of being recorded. That meant that the starting point was 4 years with a category range of 2 to 6 years.
Count 3, the judge held that since the offence involved penetrative activity, count 3 had a starting point of 3 years.
Second, the judge was acutely aware of the sensitive nature of the exercise that she had to undertake. On the one hand, there was the absolute nature of the offences committed against a 12-year-old but, in the judge's words, that "collides with the defendant and nuanced world of those who do have sex with a girl under the age of 13" in circumstances where, as the judge held, the offender's belief that she was 16 was reasonable. The judge was also acutely aware that even where there was a reasonable belief in consent:
"It remains the case that there … there must be a deterrent effect to indicate to others that imprisonment will be almost inevitably the result except in exceptional cases... Anyone below the age of 13 needs to be protected as well."
Having made clear that she accepted the offender's account where it was in conflict with V's and having referred to a degree of immaturity on the part of the offender at the time of the offending, the judge explained her approach. She took first count 3, reducing her chosen starting point of 3 years to 24 months on account of the offender's plea of guilty. She then continued:
"The overall figure on count one, which as I say is the lead count, I have reached in the following way. I have looked at the starting point of 10 years. And looked at the range of eight to 13 years. I do accept and it is something one in these cases has to wrestle with what is said. That this was a man who did not believe or intend to have sex with a 12-year-old girl. But I must and I make it clear that I do, balance that against clear authority that the victim, a 12-year-old girl the knowing and perhaps precocious 12-year-old, ultimately needs protection from others. And therefore, it is in a way a classic case of deterrence or deterrent, to put out the message to those who think that could in any way be condoned or appropriate.
But I am in my judgment, entitled to balance the culpabilities set out in those guidelines, with the reality of this case that I have found as a fact as to … his state of mind. He came to that car park intending to have, what many of us might think was reprehensible, slightly distasteful, but nevertheless lawful activity with a 16-year-old girl. And it has ended for him in the way that it does.
So, I have taken into account his good character. And I give in a sense full credit, I will give full credit for the discount to sentence in this case. But I wish to reflect in a way I think candour and maturity with which he dealt with the interview and has dealt with these matters since. I have heard his letter and listened to it carefully. I am also entitled to reflect what we accept is a degree of immaturity in the development of young men. I think in particular between the age of 18 and 24. And I find therefore for those matters. And again, I have to say again very clearly, the reasonable belief in her age and the initiation in consent of A. That I can work downwards to within a sense, the next level from eight years, 96 months, down to 84 months, which is seven years. To that I will apply a discount of a third, which produces 56 months which is four and a half years. The other matters will be concurrent to that."
As a matter of strict mathematics, 7 years less one-third is 4 years and 8 months but the outcome of this Reference does not depend upon that.
The Solicitor General's Submissions
The Solicitor General accepts the judge's categorisation of the three counts and that the starting point for count 1 would be 10 years. The Solicitor General then submits that the overall reduction from 10 to 7 years was excessive. While not able or attempting to go behind the judge's findings about V, Mr Lloyd for the Solicitor General submits that some of her observations suggest an outdated and stereotypical approach to V's evidence. It is then submitted that insufficient weight was given by the judge to the need for deterrent sentences in such cases. As a separate feature, it is submitted that there was no basis to conclude that the offender was particularly immature for his age. Finally, it is submitted that there should be an adjustment for totality to reflect the seriousness of count 2.
The offender's submission
The offender is represented before us by Mr Carse as he was in the court below. On count 1, his primary submission is that on the factual findings made by the judge, the defendant reasonably believed that he was not committing any offences with V. Furthermore the only feature that pushed count 1 into category A was the filming of the event which had started before the interaction with V and was known to V at the time. Count 2 is submitted to be part of the same course of conduct. The judge evidently took it and the principle of totality into account and was particularly well placed to do so having regard to her having heard V and the offender give evidence and having also had involvement with another incident. Count 3 should not lead to an upward adjustment, as it has already contributed to the categorisation of count 1.
Discussion and resolution
This was undoubtedly a difficult and sensitive sentencing exercise which the very experienced judge approached with great diligence and care, both in the course of the Newton hearing and in her sentencing remarks. If count 1 had stood on its own our assessment is that the notional sentence of 7 years before reduction for guilty plea could not reasonably be criticised. The judge expressly acknowledged the need for deterrent sentences and the collision (as she described it) between the absolute nature of the offence under section 5 of the Sexual Offences Act 2003 and her finding that the offender reasonably believed that V was 16. That combined with the offender's immediate and fulsome acceptance of his responsibility make this an unusual case.
It may also be observed that the need for deterrent sentences is built into the categorisation under the guideline so that the starting point of 10 years for count 1 is to be taken as incorporating the necessary deterrent exercise. However, count 1 did not stand on its own. We accept the offender's submission that to make a significant adjustment on the basis of count 3 would involve double counting and should therefore be approached with care. But the same cannot readily be said of count 2. Although count 2 can be characterised as being part of the same sequence of events as count 1, it involved the commission of another serious offence. Given the seriousness of count 1, count 2 is relatively less serious but it represented additional criminality over and above the rape that was charged under count 1 and it cannot be said that the additional criminality was not properly reflected in a sentence of 18 months as imposed by the judge on that count. The Solicitor General is correct in her submission that there is no sign of the judge having made an adjustment, or having weighted the sentence on count 1 to reflect the additional criminality of count 2.
As we have said, the 10-year starting point incorporates the deterrent element of sentencing that the judge recognised to be important. It is also the starting point that is appropriate for the typical case of rape of a child under 13, where the offender has no reasonable belief that the child was older than 13 and no reasonable belief that the victim is consenting. That is not this case. In the present case the judge's findings cannot be disturbed. The offender reasonably believed that V was 16 and reasonably believed that she was consenting. In that context the judge's finding that V had initiated the sexual activity is also important when assessing the offender's criminality. On any view what happened here is far from the typical case to which a starting point of 10 years is applicable.
There remains the question of count 2. It can be approached in one of two ways, each of which should and would lead to the same result. Either count 2 can be treated as aggravating count 1 or it can be brought in at a later stage when considering totality. We have considered both approaches. For the purposes of this judgment we adopt the former course. Starting at a starting point of 10 years, we consider that the aggravating feature of count 2 requires an upward adjustment of about 1 year taking account of totality. The resulting notional sentence of 11 years falls to be adjusted downwards for his mitigation. First, the fact that this was not a typical case but was a case where the offender reasonably believed that V was 16 and was consenting requires a significant downward adjustment to reflect the fact that this is not the typical case that is to be addressed by a starting point of 10 years before adjusting for count 2. Then, additionally, the offender had significant personal mitigation in the form of his previous good character and the exceptionally frank and immediate acceptance in interview of what had happened and his responsibility for it and his genuine remorse. It is at this point that we bear in mind the advantages that the very experienced Crown Court judge had that we do not have. She had presided over the Newton hearing and had the opportunity directly to assess both V and the offender. Her views demand considerable attention and respect.
We would accept that other judges on another occasion may reasonably have ended up at a sentence above that imposed by the judge. That is not the touchstone. More to the point, on any view, the sentence based on 7 years before reduction for plea was lenient. But the judge gave cogent reasons for her leniency. If, which is not a finding that we make, the overall sentence was unduly lenient, it was not by much. In all the circumstances, even if this sentence had to be regarded as unduly lenient, we would not think it appropriate to intervene in order to make some minor adjustments. For those reasons we refuse leave.