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	England and Wales Court of Appeal (Criminal Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Criminal Division) Decisions >> BZG & Anor, R. v [2025] EWCA Crim 598 (09 May 2025) URL: https://www.bailii.org/ew/cases/EWCA/Crim/2025/598.html Cite as: [2025] EWCA Crim 598

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IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE CENTRAL CRIMINAL COURT
HHJ Whitehouse KC
01JI1061923 (joint) 01YBZG412623 ()

		Royal Courts of Justice Strand, London, WC2A 2LL
		09/05/2025

This judgment was handed down remotely at 2pm on 9 May 2025 by circulation to the parties or their representatives by e-mail and by release to the National Archives. .............................

Lord Justice Edis:

Introduction

1. This is an extraordinary case. At the conclusion of the hearing we announced that we would grant the Attorney General leave to refer to sentences to this court under section 36 of the Criminal Justice Act 1988 as unduly lenient, but that we would not exercise our discretion to increase them. We announced that we would give our reasons in writing in due course, which we now do.
2. BZG is male and ARY is a woman who is the mother of the child victim in this case. BZG is not his father. BZG and ARY were involved in a sexual relationship with each other in late 2020 and they caused the child to watch them having sexual intercourse with each other on three occasions and also caused him to participate on two of those occasions by kissing his mother on the lips while she was having sex with BZG and on the third occasion the child was caused to smack her on her bottom.
3. These facts became apparent after another woman complained of disturbing behaviour by BZG and he was arrested and investigated by the interrogation of his phone. Video-recordings of the three events were found.
4. In addition in relation to BZG, a number of other offences were discovered during the investigation into his joint conduct with ARY which he had committed on his own, and he went on to commit further sexual offences in the time between his arrest for that joint conduct and his eventual remand in custody. At the time of that arrest, he had no previous convictions.
5. The proceedings had a very long and complex history which explains how the judge approached credit for BZG's pleas (ARY was convicted after a trial presided over by the judge). It also explains why she felt that an adjustment to sentence was required to reflect delay. BZG was first arrested on 6 November 2020. Her Honour Judge Whitehouse KC passed sentence in this case on 20 February 2025.
6. The joint offending involved consideration of two different guidelines which produced substantially different sentence levels. Causing or inciting a child under 13 to engage in sexual activity contrary to section 8 of the Sexual Offences Act 2003 is a more serious offence, maximum sentence life imprisonment if penetration involved but 14 years if not, than engaging in sexual activity in the presence of a child, contrary to section 11 of the same Act, with a maximum penalty of 10 years' imprisonment. The guidelines for each of these offences reflect that. The real problem in the joint offences in this case was to arrive at a just and proportionate sentence for each offender where the extent to which the child victim actually engaged in the sexual activity was very limited.

The joint offences

7. The joint offending involving the child was joint offending in every sense of the word. Both offenders were participants in almost all of this activity. They were nevertheless charged differently.
8. BZG, the male offender, was charged and sentenced as follows for this part of the case against him. He pleaded guilty to all the offences for which he was sentenced to concurrent terms as follows:-

1	Engaging in Sexual Activity in the Presence of a Child contrary to s.11(1) Sexual Offences Act 2003	2 years' impt
2	Causing or Inciting a Child Under 13 to Engage in Sexual Activity contrary to s.8(1) Sexual Offences Act 2003	8 year extended sentence: 5 year custodial term 3 years extended licence
3	Engaging in Sexual Activity in the Presence of a Child contrary to s.11(1) Sexual Offences Act 2003	2 years' impt
4	Causing or Inciting a Child Under 13 to Engage in Sexual Activity contrary to s.8(1) Sexual Offences Act 2003	8 year extended sentence: 5 year custodial term 3 years extended licence
5	Engaging in Sexual Activity in the Presence of a Child contrary to s.11(1) Sexual Offences Act 2003	2 years' impt
6	Causing or Inciting a Child Under 13 to Engage in Sexual Activity contrary to s.8(1) Sexual Offences Act 2003	8 year extended sentence: 5 year custodial term 3 years extended licence

9. ARY, the child's mother, was convicted after a trial, and was charged and sentenced as follows, with all sentences being concurrent:-

1	Intentionally Encouraging or Assisting the Commission of an Offence contrary to s.44 Serious Crime Act 2007	2 years' impt suspended for 2 years, with a mental health treatment order for 12 months.
2	Intentionally Encouraging or Assisting the Commission of an Offence contrary to s.44 Serious Crime Act 2007	2 years' impt suspended for 2 years with a mental health treatment order for 12 months.
3	Causing or Inciting a Child Under 13 to Engage in Sexual Activity contrary to s.8(1) Sexual Offences Act 2003	2 years' impt suspended for 2 years with a mental health treatment order for 12 months.
4	Intentionally Encouraging or Assisting the Commission of an Offence contrary to s.44 Serious Crime Act 2007	2 years' impt suspended for 2 years with a mental health treatment order for 12 months.
5	Causing or Inciting a Child Under 13 to Engage in Sexual Activity contrary to s.8(1) Sexual Offences Act 2003	2 years' impt suspended for 2 years with a mental health treatment order for 12 months.

10. It is not entirely clear why ARY was charged with three offences under section 44 of the 2007 Act, rather than as a joint offender with BZG in three section 11 offences. The two section 8 offences of which ARY was convicted involved the kissing activity, but not the smacking. That was alleged to have been incited by BZG on his own, although there was no sign that ARY objected to what was happening. The messages set out below suggest that she did not realise at the time that her son was smacking her on that occasion.

BZG's Other Offences

11. The other offences for which BZG was sentenced were charged and sentenced as follows. He faced two indictments and the court record accurately shows the results against the correct Indictment and Count numbers. For our purposes it is far simpler to number these offences consecutively, following the six joint offences already identified. There were further concurrent terms as follows:-

7	Making an Indecent Photograph of a Child contrary to s.1(1)(a) Protection of Children Act 1978	16 months impt
8	Making an Indecent Photograph of a Child contrary to s.1(1)(a) Protection of Children Act 1978	9 months impt
9	Making an Indecent Photograph of a Child contrary to s.1(1)(a) Protection of Children Act 1978	No separate penalty
10	Possession of a Prohibited Image of a Child contrary to s.62(1) and 66(2) Coroners and Justice Act 2009	18 months impt
11	Breach of a Sexual Harm Prevention Order contrary to s.103l(1)(a) Sexual Offences Act 2003	18 months impt
12	Breach of a Sexual Harm Prevention Order contrary to s.103l(1)(a) Sexual Offences Act 2003	18 months impt

12. A sexual harm prevention order was made in the case of both offenders, and the usual consequences of such convictions for far as notification and barring also followed. We are not concerned with any of those orders, but point out that the sexual harm prevention order in BZG's case is indefinite and that in ARY's case is for a five year period.

The facts of the joint offending

13. We have already summarised briefly but sufficiently the offending which was seen on the videos on BZG's phone when he was arrested. That investigation also revealed a series of WhatsApp messages between BZG and ARY which cast significant light on how those offences came to be committed. It is necessary to summarise the effect of this evidence because it informed the judge's approach to the relative culpability of the two offenders.
14. BZG is now aged 29, and ARY is now aged 28. At the time of the earliest offending in 2020 they were 25 and 23 years old respectively. ARY's son was 18 months old at that point.
15. On 4 November 2020, a woman reported to police that she had met BZG online and he had sent her indecent images of children and told her that he had had sex in front of a child. He was arrested on 6 November 2020 and his mobile telephone seized.
16. On the telephone were recordings of him having sex with an adult woman in front of a child. The woman was identified as ARY.
17. The evidence showed that they had sex in front of ARY's son on 21 September 2020, 2 October 2020 and 9 October 2020. On the first occasion BZG caused the child to touch and smack ARY's bottom. On the second and third occasions ARY had kissed her son on the lips while BZG was penetrating her.
18. A WhatsApp conversation between BZG and ARY was recovered. There is a great deal of sexual discussion between them which included the following:

i) On 2 September 2020 BZG offered to send ARY a video of a baby being raped and she said, "I'm not interested in this stuff". She said she liked "daddy daughter stuff", both real and role-play. BZG said, "So you don't mind watching my child porn with me right" and ARY replied, "Prefer teens but IDM [I don't mind] as long as it's not younger than 8".

ii) On 12 September 2020 BZG said, "Want some child porn?" and ARY replied, "I wanted to watch that with you tonight, save it for next time".

iii) On 13 September 2020 BZG (who was then serving in the Army) said that he was on military exercise and complained about staying overnight in a barn. She responded, "But you could drag a little girl there and trap her in the barn until the guys are asleep". BZG said, "I fucked you while you watched your son sleeping. You sucked my dick on his little bed. Didn't you find it hot when I bent you over his cot?" She said, "LOL no…. Little children don't do it for me. Except the DDLG [daddy little girl] fantasy".

iv) On 17 September 2020 BZG and ARY talked about him coming to her house for sex. He sent her some videos and remarked on the age of the girls in them. He said, "You gonna watch some kiddy porn with your fucked up paedo daddy, slut?" She said, "Might as well".

v) Later that night, after leaving ARY's house, BZG said, "I wanna fuck under your blanket while your son plays". ARY said, "Under the blanket, why? Can't see shit. If you want him to watch then say." BZG said, "I do want him to watch". ARY said, "I can try that". They discussed it further and ARY expressed some reluctance: "Kinda gross really, don't want him traumatised". BZG said, "Fuck it, just do it". ARY said, "OMG man. Stop coercing me". They had discussed BZG beating ARY for their mutual sexual gratification and he asked if he could beat her in front of her son. She responded, "Not beat me, no. Not in front of a child. Sexual stuff I'm fine with, he won't understand". She said that she would not give BZG oral sex in front of her son but would let him walk in on them having sex.

vi) On 21 September 2020, BZG and ARY discussed how they had sex in front of ARY's son. BZG said, "I loved it when he was slapping your ass". ARY said, "I thought that was you, LOL". BZG said, "We were both doing it. I told him to do it by demonstrating." ARY said, "Didn't realise, LOL, too busy enjoying it".

vii) On 22 September 2020, they discussed having sex in front of the child again. BZG said, "Let me make [him] touch you". ARY said, "No way man. He can watch but no touching… That's disgusting. For real none of that shit it's weird". BZG said, "Okay but he's deffo watching again." ARY said, "Cool". BZG said, "Same as last time but rougher". ARY said, "He'll be in his cot this time so he doesn't get too close". BZG said, "Just let him on the bed FFS". ARY said, "We'll see on the day".

viii) On 24 September 2020, BZG said, "When we fucked with [the child] there it was fucking incredible". ARY said, "LOL who knew a baby watching had that effect". BZG said, "Don't act like you didn't like it". ARY said, "No it didn't really do anything for me LOL. I just liked riding your dick". BZG said, "You didn't mind getting him out his cot for me". ARY said, "Cos I'm submissive in nature, didn't add anything for me". BZG said, "He touched my dick… It was hot as fuck. I was playing with your pussy at the time". ARY said, "Ew you enjoyed him touching your dick, you are one sick fuck LOL… You seriously are missed up LOL. Kids not my angle at all."

ix) On 28 September 2020, BZG claimed that he had sex with a woman in front of her three year old daughter and five year old son and that he played with the daughter's "ass". ARY expressed disbelief, "Shit her kids. Did they not like ask questions… Actually making me sick… each to their own but that poor little girl". She said that she did not want to meet any more. At that point BZG said that he had been joking: "wanted to see how much you'd go along with it". ARY said, "I feel really uncomfortable cos of the kid stuff and then you pretended you lied but we both know you probs did it. Too much for me personally". He asked if she would meet again. She said, "IDK man, my rational self says no but the curious side says yes… I like the power exchange is all… I wanna get beat but not in front of [the child]". BZG said, "Can't we fuck in front of him after beats". ARY said, "God so weird. Yeah on a separate occasion". Later on, BZG said, "Am I gonna throat fuck you in front of [the child]?" ARY said, "Ok but no hitting with him there". BZG said, "Yeah that's okay but I can spank you". ARY said "Yeah". He said, "I want to… abuse you how I wish". She said, "LOL hell no, I call the shots… Need you in your [army] uniform". BZG said, "I need you with [the child]… Don't you want that?" She said, "Not fussed, as long as I get beat".

x) On 1 October 2020 they exchanged a series of messages about meeting up to have sex in front of ARY's son. ARY said that she was "keeping baby awake" until BZG arrived. Ultimately BZG did not come over that night. BZG commented on how aroused he was when ARY's son touched her. She said, "Don't do that shit again man, don't wanna be touched by my own child". BZG said, "Can he at least spank you while you ride me?" She said, "I suppose. He finds it funny anyway."

xi) On 4 October 2020 ARY said that she wanted BZG to come over in his army uniform and rape her. She said, "Nothing nasty with [the child] but everything else you want". He referred to "when I made you kiss [the child] with tongues". He said that he wanted to make her "do stuff with [the child]". She said, "Please that's crossing a line LOL I don't wanna do nasty stuff to him. He can watch and hit me that's fine". He said, "I want to see you snog him again while I fuck you. Turns me on so bad. And get him to play with your clit again". She said, "Okay whatever you want daddy". He said, "I'm going to make you spit on him and lick it off". She said, "Okay. But I want you abusing me in your uniform for real. I've always wanted to be raped by a soldier". BZG said, "I will if you agree to do what I say". She said, "Okay I will". BZG said, "And I'm going to get him to finger you". ARY said, "No that's sick, stop that shit you weird fuck".

xii) On 8 October 2020 BZG told ARY that he could not come over because he was looking after his son. She said, "So bring him around, he can play with mine and watch". BZG said he would come the next day instead. ARY said, "Why don't you bring him around tomorrow or does fucking in front of sons become exempt to yours [sic]". BZG said that he could not bring him around. ARY said, "Excuses excuses. You could bring him after school… I think we should do it in front of yours one day, makes it even that way".

xiii) On 9 October 2020 they exchanged messages indicating that BZG was on his way to ARY's house. That afternoon they talked about what they had done that day. BZG said, "You need to get used to doing stuff with [the child]". ARY said, "What stuff. I am slowly". BZG said, "Just like touching him and more tongues. And you always moaning about him fingering you." ARY said, "Cos it's a bit much for me LOL, ok IDM as long as you make him not me".

xiv) On 11 October 2020 they discussed what ARY was prepared to do sexually with her son. BZG said, "What about you playing with his dick while I fuck you doggy". ARY said, "I did that already, okay". BZG said, "No as in his dick out". ARY said, "No I can't do that, makes me sick… I'll do kisses and tongues that's it LOL."

xv) On 28 October 2020 they talked about meeting again. BZG said, "You still up for stuff in front of [the child]". ARY said, "Yeah don't mind". BZG said that he wanted ARY to kiss her son and let him finger her. ARY said, "I'll make him finger your virgin ass". BZG said, "Do it. I'll let you if you want. Should we try it?" ARY said, "Ew you wanna get fingered so bad… Okay he practises anyway with picking his nose". She sent a picture of her son picking his nose.

xvi) On 3 November 2020 BZG said, "I really wanna cum on [the child]". ARY said, "LOL what if I left you alone in the room with [the child], what would you do… just curious". BZG said, "Why don't we see what he does if we get him in bed with us and don't stop him touching whatever he wants to touch. It turned me on so much when you admitted kissing him turns you on a little bit". ARY said, "LOL okay, most likely he'll go for your dick cos it sticks out". BZG said, "If he touches it you can't stop him tho". ARY said, "I won't, it'll be funny to watch LOL". BZG said, "What if he sucks on it". ARY said, "I highly doubt it, he'll just play with it anyways I'm open. Wish I did have a little girl instead now, would be hot". BZG said, "Why's that?" ARY said, "LOL. I wouldn't wanna do anything to the girl, I'd watch you." BZG said, "Why don't we just get [the child] to suck my dick with you". ARY said, "Erm idk lets see what he wants to do first". In relation to the imaginary daughter, BZG said, "So you'd let me taste her pussy etc". ARY said, "Yeah I actually would now, you've converted me". BZG said, "So just let me cum on [the child's] face". She said, "No it would go all over his eyes and hair, plus he's a boy, doesn't really have the same effect if it was a young girl". BZG said, "I still wanna do it tho". ARY said, "Let's just see what happens on the day".

19. The last messages are on 4 November 2020. BZG was arrested on 6 November 2020. The text has been set out in full above because the judge concluded that BZG had a real sexual interest in children, and had coerced ARY into allowing him to involve her son. It is clear that sometimes ARY objected to that, but at other times she was prepared to tolerate it. What is also clear is that BZG was contemplating far more serious offences against the child than were actually committed, perhaps because of ARY's behaviour in seeking to limit BZG's depravity.

BZG's other offences, numbered 7-12 at paragraph 11 above

20. As a result of the investigations into his phone, on his arrest in November 2020, BZG was convicted of offences soon after that. We will deal with a little more detail when we come to his convictions prior to the date of sentence in this case. They are not, in one sense, "previous convictions" because they post-date the joint offending. A Sexual Harm Prevention Order was imposed on 2 December 2021 on BZG. Offences 11 and 12 were committed when he was arrested on 28 July 2023 and an unregistered phone seized which was offence 11. It contained the Snapchat messaging app, which deletes and destroys messages, which was also a breach of the order which was offence 11. It also contained indecent images of children – five of category A, three of category B and four of category C - and 1,020 prohibited images, offences 7, 8, 9 and 10.
21. The prohibited images (offence 10) are computer generated pseudo-images. Sample images showed the appearance of very small children being penetrated and in pain and distress.

The antecedents

22. BZG by the date of sentence had three convictions for 14 offences:

i) On 2 December 2021 he was convicted of 11 offences involving making and distributing indecent images of children and possessing extreme pornographic images, committed on 6 November 2020. He was sentenced to a total of 22 months' imprisonment, suspended for 24 months. He was made subject to a sexual harm prevention order. This offence related to images found on his mobile phone when he was first arrested on suspicion of the joint offences.

ii) On 11 March 2022 he was convicted of engaging in sexual communication with a child, committed between 1 and 30 November 2021, and sentenced to nine months' imprisonment, suspended for 24 months. The dates meant that these offences were committed before the first suspended sentence was imposed and the sexual harm prevention order made.

iii) On 28 July 2022 he was convicted of breaching a sexual harm prevention order, committed on 10 June 2022, and sentenced to two months' imprisonment. The suspended sentences previously imposed were activated in part and he was sentenced to 14 months' imprisonment consecutive to the two months for the breach offence.

23. BZG appears to have been in custody from the date of his arrest on 28 July 2023. He was awaiting sentence for an appreciable period of time because ARY was not tried and convicted until 11 October 2024. Thereafter reports were ordered and the sentencing hearing took place on 20 February 205.
24. ARY had no previous convictions.

Credit for pleas: BZG

25. The judge arrived at a sentence to reflect the overall criminality of 7 years before plea discount, which she reduced to a custodial term of 5 years to reflect the pleas. That sentence was imposed on the 3 section 8 offences, numbered 2, 4, and 6, as an extended determinate sentence of 8 years with that custodial term. That was a discount somewhere between one third and one quarter and was designed to reflect the different stages at which pleas were tended and to take into account the difficulties there had been in arranging effective hearings where pleas could be entered. We are not invited to interfere with this assessment made the judge.

The Pre-Sentence Reports

26. The report on BZG set out his account of the offending. He said that he met ARY online and they met in person and discussed their sexual fantasies. She said that she enjoyed pretending to be a 12-year-old girl during sex. He said that he had probably suggested having sex in front of her son but she did not reject the idea. He admitted that he was aroused by the presence of the child and said that ARY seemed to be enjoying herself too. He said that he did not appreciate at the time the harm he was causing to the child as he believed that he would be too young to remember. He now had some insight into the likely harm caused. BZG said that he struggled to manage his sexual urges and was drawn towards taboo sexual practices. He denied having a sexual interest in children; rather he said that he was aroused by finding the most extreme images possible. He claimed that he had thought that the indecent images of children he had, for which he was prosecuted, were of adults. The probation officer found that:

"…he had developed a high level of sexual pre-occupation underpinned by a sexual interest in children and perhaps vulnerable women… the current offences are indicative of a high level of manipulative and predatory behaviour, which in my assessment is underpinned by his sexual entitlement, a desire for power and control, his distorted sexual thinking and his inability to manage his sexual urges. It is evident that his behaviour will require significant risk reduction work if the likelihood of him committing further sexual offending against adults or children is to be reduced."

27. She commented in relation to his offending on bail and in breach of a SHPO that:

"…his deceptiveness… makes it very difficult for professionals to monitor and manage the risk he poses."

28. She set out his background. His father died when he was nine. His mother had substance abuse problems and his home life was chaotic. He spent time in social care. He witnessed substance abuse and adult sexual activity as a child. He had a son who was now eight years ago but had not seen him in three years as a result of his SHPO.
29. The probation officer concluded that BZG posed a high risk of serious sexual harm to children and adult women. He presented as engaged and willing to co-operate with probation but continued to offennd and breached his SHPO, suggesting "a high degree of false compliance".
30. The report on ARY set out her account of the offending in detail. She said that she began chatting to BZG on a dating app and then began to meet him. She thought that their "weird and strange" messaging was just to "get a reaction" and she did not take it seriously. She claimed that she did not view the indecent images he sent her. The probation officer noted that this was at odds with the message transcript in which she and BZG discussed the images. She claimed that she had no sexual interest in children. She had said things to go along with BZG. ARY said that she expected men to be dominant and violent in sexual relationships as that was all that she had experienced. She thought that BZG's apparent interest in her son was a way of hurting her and did not realise that BZG was really sexually interested in him. The probation officer was sceptical about ARY's level of insight. She said that she now understood the harm caused to her son but said that her son was too young to retain memories of the abuse and described herself as "not a criminal… not a danger to children" but someone who made a "bad mistake". The probation officer considered that ARY was trying to deflect blame on to BZG. She said that this might be warranted to a degree but ARY had breached her son's trust, and had invited BZG into her home and maintained contact with him in the knowledge that he wanted to involve her son in sexual activity. She considered that shame and guilt might be preventing ARY from taking full responsibility.
31. The report described ARY's background. She had been abused by her son's father and her son was made subject to a child protection plan after witnessing domestic abuse. She suffered post-natal depression after her son's birth. ARY told her that as a result of the criminal proceedings the Family Court had removed her son from her care, making her mother and sister guardians. She had completed an eight week "protective parenting course". ARY said that her son spent time with her unsupervised at her mother's discretion. The probation officer was sufficiently concerned about this to contact social services. She felt that ARY was in a low mood during their interview and referred her for a mental health treatment requirement report.
32. The probation officer assessed ARY as posing a low likelihood of serious re-offending. Her motivations in relation to sexual offending required further exploration. She posed a medium risk of serious harm to her son. The risk would increase if she regained custody.
33. The probation officer referred to the court's request that all sentencing options be addressed. She advised that if the court were to suspend a custodial sentence then a mental health treatment requirement could be imposed together with up to 50 days' rehabilitation activity requirement focused on her sexual offending.
34. A mental health treatment requirement report was prepared for ARY. She was described as remorseful and taking full responsibility for her actions. The writer felt that the offending was explained by ARY's "experiences of violent and coercive relationships" as these "impacted on her capacity to assert herself" when pressured by BZG. The writer recommended psychological therapy within a 12-month mental health treatment requirement to develop her self-esteem and support her.

The submissions before the judge

35. It is only necessary to record part of the submissions before the judge for our purposes. This is because she accepted an agreed categorisation of the section 8 offences as falling within category 3A for the guideline. The prosecution sentencing note to the judge about the proper classification of the joint offences involving the child set the matter out in this way:-

"For BZG, each offence engaging in sexual activity in the presence of a child was said to fall individually into category 2A as the activity involved penetration and the offence involved planning and acting with another. The starting point was two years with a range of one to three years. The offences were aggravated by his previous convictions and failure to abide by court orders. For ARY, each offence of intentionally encouraging or assisting the commission of an offence, considered under the same guideline, fell into the same category for the same reasons. In her case there were said to be no aggravating factors.

"For both offenders, each offence of causing or inciting a child to engage in sexual activity was said to fall individually into category 3 for harm, and culpability A owing to the significant degree of planning and acting together with another. The starting point was two years' custody and the range was one to four years. In BZG's case, the offences were aggravated by his previous convictions and failure to comply with current court orders. For ARY there were said to be no aggravating factors. It was not submitted that the offences fell into category 2 on the basis that the child was 'particularly vulnerable due to extreme youth and/or personal circumstances'."

36. In oral submissions prosecuting counsel made it clear that the actual starting point for a category 3A offence is 5 years and the range is 3-8 years. She was "very clear that it was culpability A" and accepted that it was level 3 for harm. In this exchange about the case of BZG:-

JUDGE WHITEHOUSE: The sexual activity actually incited or encouraged was in fact of a relatively low level was it not?

MS BULL: Yes.

JUDGE WHITEHOUSE: It was kissing on the lips in two cases and touching ARY's bottom on another.

MS BULL: Yes. And Your Honour that's reflected in the harm categorisation, that category, in Category 3.

JUDGE WHITEHOUSE: Yes

The judge's approach

37. In sentencing, the judge referred to BZG's previous convictions and described his "repeated propensity" to breach court orders and sexual harm prevention orders. The offences on the joint indictment with ARY were the most serious. She agreed with the prosecution in relation to the offences of engaging in sexual activity in the presence of a child that the harm was category 2 as the child was made to watch penetrative sex and the culpability was A because of the planning involved. She agreed with the prosecution that the offences of causing or inciting a child to engage in sexual activity fell into category 3A. There was a degree of planning and the offences were recorded. The offences were all aggravated by his previous convictions and breach of court orders. She said that the mitigating factors were set out in the pre-sentence report and reports from the prison. He was said to be an enhanced prisoner who was engaging with interventions. She rejected a defence submission that BZG's offending was decreasing in seriousness. She described him as a "sexual predator" who had manipulated ARY. She found that he was dangerous. The probation officer remarked in the pre-sentence report on his distorted sexual thinking and the need for significant risk reduction work. He had breached his SHPO twice. There was a high degree of "false compliance" in his dealings with the probation service. The terms of imprisonment would be short and did not address the risk in his case and so she would impose extended sentences.
38. In ARY's case, the judge observed during the prosecution's submissions:

"…I have an understanding of the way in which these messages developed and I was also able to observe Ms ARY who gave evidence in that trial. So, I am probably in a better position than anybody really to assess in particular culpability here because you are absolutely right that it does appear to be a case where there is an abuse of trust plainly as a mother and handling a child. And so that factor is present. On the other hand, there are other factors militating in favour of reduced culpability it seems to me."

39. The judge noted that she had no previous convictions and was 23 at the time of the offences. She had read the mental health treatment requirement report, pre-sentence report and psychological reports and saw ARY give evidence at trial. She agreed that ARY had very low self-esteem. The psychological assessment said that she had traits of autism spectrum disorder and emotionally unstable personality disorder, albeit not at a diagnostic level.
40. The assisting offences had to be considered with reference to the guideline for engaging in sexual activity in the presence of a child. The harm was category 2. The prosecution suggested culpability A because of the planning and group activity but said that there was "a degree of lesser culpability".
41. The offences of causing a child to engage in sexual activity involved "a significant Culpability A factor" because of the breach of trust. The offence fell into category 3A, but there were factors reducing ARY's culpability from A:

"She was very young at the time; 23 years of age, and she was isolated, and it was during the pandemic. She has no previous convictions. She has vulnerable and frail mental health. The psychologist reports that she presents with significant indications of depression, low self-esteem and compliance. He has concerns that she is vulnerable to manipulation, coercion from others; and my impression at the trial was, and I have no doubt, Ms ARY was subjected to a degree of coercion and manipulation by Mr BZG. There was also a long delay of two and a half years between initial arrest and final charge in August 2023, and it was then more than 12 months before the trial took place."

42. The offences passed the custody threshold and the term was two years. The judge said:

"Now I am aware that the sentence is a relatively low sentence, but as I have said, I presided over your trial and I am in a position to judge the degree of culpability that you bear, and that is why I have concluded that two years is an appropriate sentence."

The submissions before this court

43. We received written and oral submissions of a very high quality from all counsel in the case, and we are very grateful to them all for their help. We will not summarise them in detail, but will set out the essence of the Attorney General's challenge advanced by Ms. Sarah Przybylska.
44. It is submitted that the overall sentence imposed was unduly lenient on the following grounds:

i) In relation to BZG:

a) The lead offences of causing a child to engage in sexual activity were wrongly categorised following an incorrect submission by prosecuting counsel that they fell into category 3A. The 18 month old victim was on any view "particularly vulnerable due to extreme youth" as set out in category 2. Following R v AZ [2022] EWCA Crim 620, his particularly young age made him an extreme example within that category of victim and the offences therefore fell into category 1 for harm. Culpability A was agreed. The starting point for the lead offences when correctly categorised should have been 13 years, with a range of 11 to 17 years.

b) Further, or in the alternative, the judge gave too little weight to the offender's previous convictions and the multiple offences to be sentenced, and as a result sentence imposed did not adequately reflect all of the offending behaviour with reference to overall harm and culpability.

ii) In relation to ARY:

a) The lead offences of causing a child to engage in sexual activity were wrongly categorised following an incorrect submission by prosecuting counsel that they fell into category 3A. The 18 month old victim was on any view "particularly vulnerable due to extreme youth" as set out in category 2. Following R v AZ [2022] EWCA Crim 620, his particularly young age made him an extreme example within that category of victim and the offences therefore fell into category 1 for harm. Culpability A was agreed. The starting point for the lead offences when correctly categorised should have been 13 years, with a range of 11 to 17 years.

b) Further, or in the alternative, the judge gave too much weight to the mitigating factors and too little weight to the multiple factors increasing the offender's culpability, and as a result the sentence imposed did not adequately reflect all of the offending behaviour with reference to overall harm and culpability.

45. This is further developed by reference to the guideline for the section 8 offences of encouraging or inciting a child under 13 to engage on sexual activity as follows:-

i) The guideline provides that an offence that does not involve penetration or other severe harm involves category 3 harm.

ii) An offence will fall into category 2 where the child is "particularly vulnerable due to extreme youth and/or personal circumstances". The guideline states:

"The extreme nature of one or more category 2 factors or the extreme impact caused by a combination of category 2 factors may elevate to category 1."

iii) In R v AZ [2022] EWCA Crim 620, the offender was convicted of rape of a child under 13, namely his two and a half year old daughter. The guideline for rape of a child under 13 also lists "child is particularly vulnerable due to extreme youth" as a category 2 harm factor and contains the same wording in relation to category 1 harm. William Davis LJ found that the sentence imposed was unduly lenient, accepting the submission on behalf of the Solicitor General that the child's age (two and a half) meant that the harm was Category 1:

"We are in no doubt that the offence fell squarely within Category 1 harm in the guideline, because of the extreme nature of the relevant Category 2 factor, namely 'child is particularly vulnerable due to extreme youth'. "

iv) An offence involving (inter alia) an abuse of trust, planning, group offending or recording of sexual images of the victim falls into culpability A.

v) The starting point for a category 1A offence is 13 years' custody. The range is 11 to 17 years.

vi) The starting point for a category 2A offence is eight years' custody. The range is five to ten years.

vii) The starting point for a category 3A offence is five years' custody. The range is three to eight years' custody.

46. It is therefore submitted that the judge should have placed the section 8 offences into category 1A and taken a starting point of 13 years. The "relatively low level" of the sexual activity should be reflected in a reduction within the category range, but to go as far down as the judge did in the cases of both these offenders was unduly lenient. It will be recalled that the phrase "relatively low level" was used by the judge in argument to describe the sexual activity which the child was encouraged or incited to engage in, and that it was accepted by prosecuting counsel as apt.
47. It is always difficult to explain that prohibited sexual activity varies in seriousness. It is always serious to the victim, and this must never be downplayed. In an exchange between Mr. Maggs, for BZG, and the judge, he said that the sexual activity in this case was "about as low as one could get within this guideline and still be an offence". The judge agreed with that saying that this was relevant to the assessment of harm rather than culpability.
48. Ms. Przybylska accepted that there was substantial mitigation available to ARY, but submitted that it was not open to the judge to reduce her sentence to a level close to that which would render suspension of the sentence lawful.

Discussion

49. We started this judgment by observing that this is an extraordinary case. We are told that there is another case raising similar issues which is to be heard by a different constitution on 13 May 2025. We know nothing about that case, and, in these circumstances, we think that the best approach for us to take is to focus entirely on the case before us. These will leave the court hearing the later case in a position to consider whether there are any wider issues involved and to deal with them if so. This decision is limited in its scope to the facts of the case before us.
50. The case involved joint offending between two very different people, on the findings of the judge. BZG is a predatory sex offender who has a sexual interest in children. ARY is neither of those things. She is the mother of a small child who fell into a sexual relationship with BZG and who was vulnerable to coercion and manipulation by him. She has a history of relationships with men which rendered her less able to resist him. To her shame, and disgracefully, she was persuaded to have sex with BZG in the presence of her child, and to allow BZG to draw the child into their sexual activity. It is clear from the WhatsApp messages that BZG wanted the child to be much more involved in sexual activity than he ever actually was, and that ARY's response in those conversations varied from forbidding that development to contemplating it as a possibility. It did not actually happen. Those messages are shocking in many ways, but have to be read, in her case, with that in mind. This was what the judge meant, and did, in her observations recorded at [38] above.
51. The child kissed his mother on the lips on two occasions and smacked her on the bottom on the third occasion, although she did not know about that until BZG told her later that it had happened. For a small child to kiss its mother on the lips, when the mother has no sexual interest in her child, is not abnormal behaviour. What made it so, and what made it criminal, was the fact that it occurred at a time when the mother was engaged in consensual sexual intercourse with BZG, who derived sexual excitement (as she knew) from watching it. It seems that the indictment against the mother, ARY, was drawn up in a way which marked the very different type of offending committed by her from that committed by BZG. Given that the offending was essentially carried out jointly, this is a striking and unusual situation.
52. From the judge's point of view, the case involved two guidelines which produced very different outcomes. The guideline for sexual activity in the presence of a child suggest a starting point of 2 years with a range of 1-3 years. That for encouraging or inciting a child to engage in sexual activity (on the prosecution submission to this court, as opposed to the submission which was made to the judge) is that it is a category 1A offence, with a range of 13 years and a range of 11 -17 years, or a 3A offence of 5 years and 3-8 respectively. The difference in outcome is, it seems to us, that the more severe guideline contemplates that the child will have been encouraged or incited to carry out much more significant sexual acts than is the case here. The kind of sexual acts we have in mind are themselves likely to cause harm at a high level. AZ is a case of rape of a child, where the very young age of the child served very properly to elevate that case to the highest level of harm. In guidelines for offences where the sexual activity involving the child may have been at a far lower level of gravity, such an approach is harder to sustain. That is really the point which was being made by prosecuting counsel at trial in the exchange set out at [36] above (about BZG) and which underlay her submission that the harm in this case was at level 3, even though it was clearly a culpability A case.

ARY

53. In sentencing ARY, it is clear from the material set out at [39]-[42] that the judge was aware that she needed to apply the guideline to the facts of the case she was dealing with. The classification at category 3A for the guideline for encouraging or inciting the child required adjustment because there were elements of "lesser culpability" as well as elements of lesser harm. By giving effect to those she was able to reduce the sentence below the level of the sentencing range for a 3A offence to two years imprisonment. This is the starting point for an offence under the other relevant guideline. In all the circumstances she concluded that this sentence could properly be suspended and accompanied by a mental health treatment requirement. It was not irrelevant that by the time of sentencing the child's grandmother was caring for him, social services had closed their file, and that (given the long passage of time between offence and sentence) he was now likely to be acutely affected by the incarceration of his mother, whom he saw regularly. We enquired whether that is still the case, and it is. There is now no social services involvement in the care of this little boy and he sees his mother, under the supervision of his grandmother, very frequently.
54. It seems to us that it would be quite wrong now to interfere with a brave and sensitive sentencing decision by a judge who had presided over ARY's trial and taken all relevant matters into account in arriving at a humane sentence which places the interests of the child victim at the heart of the outcome, consistent with the Imposition of Community and Custodial Sentences Sentencing Council definitive guideline. Accordingly, we will not quash the order made by the judge which will stand in ARY's case.

BZG

55. This leaves BZG, who is a dangerous, predatory and manipulative sex offender with a sexual interest in young children.
56. Having regard to the entirely different motivation and history of BZG from ARY it was inevitable that the sentence on him would be far more severe than that on her. We consider it entirely likely that but for her rather erratic restraining influence he would have committed much more serious offences against the child than ever in fact occurred. Since his arrest on 6 November 2020 he has behaved in a deeply worrying way, being resistant to orders designed to discourage sexual offending by him.
57. We take the view that he has been dealt with in a lenient way, perhaps because of the influence on the sentencing judge of the way she had decided to treat ARY. It is obvious that in any sentencing exercise he would be far more severely dealt with than her, but some of the factors concerning the three occasions when sexual offences were committed by both of them together applied in his case as well, and they operated to moderate the final outcome for him. In particular, the nuanced assessment of the harm resulting from the offences of encouraging or inciting a child under 13 to engage in sexual activity made in the case of ARY had, in fairness, to be carried across into the sentencing of BZG.
58. We suspect that if he had been dealt with sooner after his arrest and without regard to the outcome for ARY, the result might have been an extended sentence with a rather longer custodial term. However, even then his offending was at such a level that his release at some point was inevitable. This is not a case where the risk to the public can be prevented by an indefinite or very long custodial term. Accordingly, we do not think that anything material would be achieved by lengthening the custodial term in his case. He has been judicially identified now as a dangerous sex offender who presents a risk of sexual harm to children. He will be managed on his release under licence, and subject to significant restrictions from the Sexual Harm Prevention Order for an indefinite period. The result of any further sexual offending or non-compliance with the various restrictions and obligations is likely to be very lengthy periods of imprisonment.
59. In his case also, the judge carefully considered all relevant matters and produced a sentence which was calibrated to reflect her assessment of the highly unusual case. In these circumstances we decline to interfere with the sentence in his case either. We hope we have said enough to explain why his case should not be used as a precedent except for any cases which are identical to his. We doubt if there will be many of these.

Conclusion

60. For these reasons, we give leave to the Attorney General to refer these cases under section 36 of the 1988 Act, but decline to alter the sentences.