Mullen, R. v [2026] EWCA Crim 133 (30 January 2026)

Neutral Citation Number: [2026] EWCA Crim 133 CASE NO: 202503866/A3 IN THE COURT OF APPEAL CRIMINAL DIVISION ON APPEAL FROM THE CROWN COURT AT WOOD GREEN (HHJ GODFREY) [T20227497] Royal Courts of Justice Strand London WC2A 2LL 30 January 2026 B e f o r e : LORD JUSTICE SINGH MR JUSTICE GRIFFITHS MR JUSTICE SWEETING ____________________ REX - v - KIERAN MULLEN Reference by the Attorney General under s.36 Criminal Justice Act 1988 ____________________ Computer Aided Transcript of Epiq Europe Ltd, Lower Ground, 46 Chancery Lane, London WC2A 1JE Tel No: 020 7404 1400; Email: rcj@epiqglobal.co.uk (Official Shorthand Writers to the Court) ____________________ MR P JARVIS KC appeared on behalf of the Attorney General MR S ANIMASHAUN appeared on behalf of the Offender ____________________ HTML VERSION OF JUDGMENT (APPROVED) ____________________ Crown Copyright © This Transcript is Crown Copyright. It may not be reproduced in whole or in part other than in accordance with relevant licence or with the express consent of the Authority. All rights are reserved. LORD JUSTICE SINGH: The provisions of the Sexual Offences (Amendment) Act 1992 apply to this case. 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 1992 Act. This judgment is accordingly anonymised. Introduction The respondent was born on 7 May 1991 and is now aged 34. He was 22 at the time of the first set of offences in 2013, and 29 at the time of the second set of offences in 2020. On 22 August 2025 he was convicted by the jury of sexual offences, to which we will return in more detail, in the Crown Court at Wood Green. On 3 October 2025 he was sentenced by HHJ Godfrey as follows: On count 1, which was an offence of rape, there was a sentence of 4 years' imprisonment. On counts 2 and 3, which were also offences of rape, there was a sentence of 5 years' imprisonment for each made concurrent as between each other and with count 1. On count 4, another offence of rape, there was a sentence of 6 years' imprisonment. This was made consecutive to the other sentences. Finally on count 6, which was an offence of sexual assault contrary to section 3 of the Sexual Offences Act 2003, there was a concurrent sentence of 3 years' imprisonment. Accordingly that made a total sentence of 11 years' imprisonment. A statutory surcharge order was imposed. Count 5, which was an allegation of sexual assault was ordered to lie on the file on the usual terms. His Majesty's Solicitor General now applies to this Court, under section 36 of the Criminal Justice Act 1988 ("the 1988 Act"), for leave to refer those sentences to this Court on the ground that they were unduly lenient. The facts The facts for present purposes can be taken from the Final Reference. They are set out in detail at paragraphs 9 to 24 but it will suffice for the purpose of this application to take them from the summary at paragraph 6. We also make it clear that insofar as there is any dispute of fact between the parties, we proceed on the basis of the findings of fact made by the sentencing judge, no more and no less. We do not go beyond those facts. In summary, in September 2013, when the respondent was 22 years old and the first victim was aged 19 and in her first week of university, the offender took her back to his flat in York after an evening out. They had consensual vaginal sex but the offender then anally raped her. In the morning the offender started to rape the first victim again when she was asleep vaginally at first and then anally. She did not complain to the police at the time but she came forward in 2016 (some 3 years later). No further action was taken at the time after the offender denied raping the first victim in his police interview in 2018. In August 2020, the offender met the second victim on another evening out. He was 29 years old and she was 23. They went to sleep on a mattress on the floor of someone else's bedroom and engaged in some kissing and sexual touching. She awoke to find the offender touching and then raping her. He also sexually assaulted her. The second victim went to the police and that prompted a reconsideration of the allegations made by the first victim. The offender was initially charged with the offences committed against the second victim. At trial the jury was unable to agree on verdicts and so a retrial was directed to take place. In the meantime, the offender had been charged with the offences committed against the first victim. The two sets of proceedings were joined and the offender stood trial on a joint indictment containing six counts. On 22 August 2025 he was convicted at the conclusion of that trial of three offences of raping the first victim, one offence of raping the second victim and one offence of sexually assaulting the second victim. The sentencing framework The focus of the present application is the offences of rape and we shall focus on that offence also. The maximum sentence for that offence is one of life imprisonment. The Sentencing Council has issued a Definitive Guideline on such cases, which requires an assessment to be made both of harm and of culpability. Suffice it to say for present purposes that category 2 harm cases can include cases where there is severe psychological harm; they can also include cases where the victim is particularly vulnerable due to personal circumstances. It is not suggested in the present application that any of the culpability A factors was present in this case. Culpability B is a case where the factors in category A are not present. Before turning to the table which is set out in the Definitive Guideline, setting out recommended starting points and category ranges, it is important to note that the guideline expressly says this: "An adjustment from the starting point, upwards or downwards, may be necessary to reflect particular features of culpability and/or harm (for example, the presence of multiple factors within one category, the presence of factors from more than one category (where not already taken into account at step 1), or where a case falls close to a borderline between categories)." The guideline also states that a case of particular gravity reflected by multiple features of culpability or harm in step 1 could merit upward adjustment from the starting point before further adjustment for aggravating or mitigating features. The table then set out in the guideline makes the following recommendations. If a case falls within category 2B, the starting point is 8 years' custody with a category range of 7 to 9 years. It is not suggested that the present case falls within a different set of categories but we observe that if a case falls within category 1B, the starting point recommended is 12 years' custody, with a category range of 10 to 15 years. If a case falls within category 2A, the starting point recommended is 10 years' custody with a category range of 9 to 13 years. If a case falls within category 1A, the starting point recommended is 15 years' custody with a category range of 13 to 19 years. It is also right to note that the guideline also makes this clear, indeed setting it out in bold font under the heading "Step 1": "Offences may be of such severity, for example involving a campaign of rape, that sentences of 20 years and above may be appropriate." What these features of the Definitive Guideline serve to underline, in our view, is that in this context, perhaps even more than in many sentencing contexts, it is important not to view the categories as rigid pigeonholes. For example, the range in category 2B cases is relatively small, that is between 7 and 9 years' custody. There will inevitably be a wide range of factual circumstances in different cases and it is important to keep well in mind the principle that sentencing is an art and not a scientific or mathematical exercise. The sentencing process The offender had no previous cautions or convictions. The sentencing court, like this Court, was able to read the victim personal statements from each of the two victims in this case. In her statement, the first victim explained that she had just moved into university accommodation when she had met the offender. He made her feel like a worthless object. He destroyed her self-confidence. Even after the rapes she could not escape the offender because she saw him so often on campus. He was a black cloud in the back of her mind. It took her a long time to start trusting men again. In her statement, the second victim said the ordeal at the hands of the offender left her with PTSD and suffering regular panic attacks. Sometimes those attacks are so extreme that she imagines the offender is in the room with her. On those occasions she screams and cries because she believes that he is going to rape her again. She takes medication to help her to cope. The sentencing court did not feel it necessary to have a pre-sentence report in this case in view of the inevitable lengthy custodial sentence that would be required. However, this Court has received a report for the purposes of this application for which we are grateful and we have taken into account. Suffice it for present purposes to note that in the concluding section the report states: "It is a difficult exercise to determine whether Mr Mullen presents a significant risk to adult females of serious harm through the commission of further specified offences. This is his first conviction, and to all appearances he presents as a pro-social individual who respects the law. However, his offending behaviour completely contradicts this. It seems he viewed the victims as being there for his gratification, and he had no qualms about engaging with sexual activity despite not having consent for this. In my view there is little victim empathy although he has expressed remorse, at present this appears to be rather superficial. I would suggest until Mr Mullen has engaged with work designed to address his sexual offending, increase insight into his offending and accept full responsibility, there remains a significant risk to adult women." The sentencing court had Sentencing Notes from both the prosecution and the defence. There were character references served on behalf of the offender as well as a letter which he himself had written to the sentencing judge. In his sentencing remarks, the judge decided that for count 1 the harm fell into category 3 and the offender's culpability was B. This resulted in a starting point of 5 years' custody with a range of 4 to 7 years. Taking counts 2 and 3 together, the judge said that the harm was in category 2 because the first victim had been asleep when the penetration began. He was not satisfied in the case of the first victim that there was the further factor of severe psychologic harm. The judge said that the offender's culpability for those offences was also category B. This resulted in a starting point of 8 years' imprisonment with a range of 7 to 9 years. He said that those counts were aggravated by the earlier rape in count 1, by the humiliation the anal rape in particular had caused and by the fact that the first victim had suffered a urinary tract infection. In relation to count 4, the judge said that the harm fell into category 2 because the second victim was particularly vulnerable and also she suffered severe psychological harm. The offender's culpability was again B, so the starting point again was 8 years' imprisonment. That offence, the judge said, was aggravated by the fact the offender had not worn a condom, the fact that he was under the influence of alcohol and that he also committed an offence of sexual assault at the same time. Turning to mitigation, the judge observed the offender was 34 and had been of previous good character. He considered there was some, though limited mitigation, in the fact that the offender had only been 22 when he committed the offences against the first victim. He also reflected on the delay between them and the offender being charged with those offences in August 2024. The judge was also prepared to accept from the character references that the offender was someone who had made a positive contribution to the community. As to the issue of dangerousness the judge addressed his mind to the relevant test but concluded that the lengthy determinate custodial sentence with a period on licence would provide sufficient protection to the public. The judge said that had they stood alone the custodial sentences on counts 1, 2 and 3 would have been 4 years, 6 years and 6 years respectively. On count 4, the sentence would have been one of 8½ years and a sentence of 3 years on count 6. The judge decided that it would be appropriate to order the sentences in counts 1, 2 and 3 should run concurrently, as should the sentences on counts 4 and 6 but the latter set should be consecutive to the former. Having regard to totality the judge reduced the sentences on counts 2 and 3 from 6 years to 5 years' custody, and he reduced the sentence on count 4 from 8½ years to 6 years' custody. As we have said, he made those sets of sentences run consecutively, thus making the overall sentence of 11 years' imprisonment. Submissions on behalf of the Solicitor General On behalf of the Solicitor General Mr Jarvis KC submits that the overall sentence in this case was unduly lenient. The offender stood to be sentenced for two sets of sexual offences committed against two different victims, in similar circumstances but years apart. In both cases the victims were, at one stage, asleep when the offender decided to rape them. That made them particularly vulnerable . Applying the Definitive Guideline the starting point after trial for the offences in counts 2, 3 and 4 was 8 years' custody. The judge was entitled to make sentences for the offences committed in 2020 run consecutively to the offences committed in 2013, but even making due allowance for totality, Mr Jarvis submits the overall sentence should have been considerably longer than 11 years. Mr Jarvis submits that with respect to the first victim the offender had raped her three times. The second and third were more serious on the judge's analysis because she had been asleep when they began. For those two rapes, the starting point was 8 years' custody but the judge decided the appropriate overall sentence was one of 6 years which is beneath the bottom of the category range even for a single category 2B offence. The explanation, submits Mr Jarvis, can only be that the judge thought that the offender's relative youth at the time of these offences coupled with the delay between their commission and the charges being brought against him entitled the judge to depart from the category range. Mr Jarvis submits that neither factor in truth warranted any significant reduction from the sentences that should have been imposed on counts 1, 2 and 3. It is accepted by all sides that the sentence after trial of 8½ years on count 4 was reasonable taking into account the seriousness of count 6 as well. Further, submits Mr Jarvis, the judge was entitled to order the two sets of sentences to run consecutively to each other and he accepts, as he is bound to do, that there had to be some adjustment to the individual sentences so as to reflect the principle of totality. Nevertheless the core submission which Mr Jarvis makes is that the judge fell into error both in imposing too low a sentence on counts 1, 2 and 3, and then by making too great a reduction for totality when ordering the sentences on those counts to run consecutively to the sentence on count 4. In those circumstances, submits Mr Jarvis, the overall sentence should have been considerably longer than 11 years' imprisonment. Submissions on behalf of the respondent On behalf of the respondent Mr Animashaun makes the following submissions. First, the overall sentence for counts 2 and 3 was correct and the judge properly made an adjustment to the sentences in the light of the evidence before him. Secondly, the judge's approach to totality was correct, in that he followed the correct procedure and imposed a sentence which was just and proportionate. The sentences were proportionate having regard to comparative decisions of this Court which in fact involved facts of greater severity than these. Mr Animashaun does not accept the entirety of the factual summary in the Solicitor General's Final Reference. Nevertheless, as we have already mentioned, we make it clear that we assess this application simply on the basis of the judge's own findings of fact and do not go beyond them. In developing his main submissions Mr Animashaun makes the following points. First, the judge reasonably decided to make a downward adjustment in relation to counts 2 and 3, in view of (i) the mitigating factors of youth and substantial delay which permitted him to go outside the category range and (ii) the fact that the judge concluded that the psychological harm in the case of the first victim fell short of category 2 because it was not severe psychological harm. We must observe in passing that of course in relation to the second victim, the judge did reach the conclusion that there was severe psychological harm. In both cases the judge reached the conclusion that the victims were particularly vulnerable because they were asleep at the relevant time. In relation to the delay in this case, Mr Animashaun observes there was a delay of 11 years between the first set of offences and the sentences passed on the respondent. The offences that occurred in September 2013 were not reported until September 2016. An ABE interview of the first victim was conducted in October 2016 but the respondent was only interviewed in July 2018. Further, he received a "no further action notice" by the police in 2018. Yet, submits Mr Animashaun, all of the relevant evidence that was used in the trial in due course had been located by 2018. The judge concluded that through no fault of the respondent was not tried until 2024 and not sentenced until 2025. Further, Mr Animashaun submits that the respondent was a young and immature adult at the time of the first set of offences. He reminds this Court that it has frequently been said that reaching the age of 18 is not a "cliff edge" for sentencing purposes. He submits the judge had properly regard to the Sentencing Council Guideline on sentencing persons aged 18 to 25 years of age. Further, there was previous good character in this case and the respondent's conduct had been exemplary in the time between the different sets of offences. So far as harm is concerned, Mr Animashaun notes that such harm is often inherent in the nature of the offence itself. So far as vulnerability is concerned, he suggests, at least in his written submissions, that a distinction should be drawn between the kind of activity in which this respondent engaged and more severe cases of placing a person, for example, in a more vulnerable space, the use of violence or restraints. He submits that none of those factual circumstances applied to this respondent's actions. He also draws attention to the guideline on totality, in particular, that if consecutive sentences are to be imposed it is usually impossible to arrive at a just and proportionate sentence simply adding notional single sentences together. Ordinarily some downward adjustment is required. Further, the sentence should reflect overall harm and culpability together with the aggravating and mitigating factors and should be just and proportionate. He submits that unless the sentencing court stands back in that way, the consequence would lead to the imposition of an overall sentence that would be equivalent to those imposed for extreme cases falling within category 1. We have briefly made reference to what the guideline suggests by way of sentences in such cases. Mr Animashaun observes that here the judge imposed an overall sentence which the respondent would not have received for a single offence if any of the counts had stood alone. The total sentence is beyond the range for a category 2B offence and is more akin, he submits, to a category 1B case. Finally, he has drawn the attention of this Court to other decisions of this Court where he submits in particular that there was additional violence used. We are not persuaded that it is helpful to look at the facts of individual decisions in other cases of this Court, since each case inevitably turns on its own facts and those cases were not laying down any general principles. Our assessment We remind ourselves of the fundamental principles which govern an application under section 36 of the 1988 Act. In Attorney-General's Reference (No 4 of 1989) (1990) 90 Cr App R 366 at page 371, Lord Lane CJ made two points about the structure of section 36. The first thing to be observed, he said, is that the Court may only increase sentences which it concludes were unduly lenient. It cannot have been the intention of Parliament to subject defendants to the risk of having their sentences increased with all the anxiety that this gives rise to merely because in the opinion of this Court the sentence was less than this Court would have imposed. A sentence is unduly lenient where it falls outside the range of sentences which the judge, applying his mind to all the relevant factors, could reasonably consider appropriate. The second thing Lord Lane observed is that even where it considers the sentence is unduly lenient, this Court still retains a discretion as to whether to exercise its powers. Turning to the circumstances of the present case, we consider that this was a difficult sentencing exercise as there were two sets of offences against two different victims and they were many years apart. Further, the respondent was a relatively young man at the time of the 2013 offences and there had been a long delay before he was eventually charged, convicted and sentenced. The way in which the sentences were structured was primarily a matter for the sentencing judge but we have no doubt that the judge was right to make the sentences for the two sets of offences consecutive. He was also right then to step back and assess the totality of his sentences to ensure that they were just and proportionate in all the circumstances to reflect the overall gravity of the offending. There can also be no doubt that each of the offences in counts 2, 3 and 4 fell into category 2B in the relevant guideline. The recommended starting point is therefore 8 years' custody, with a range of 7 to 9 years. But that is for a single offence. Here there were multiple offences and there were the other offences in counts 1 and 6 which were rightly made concurrent but that needed to be reflected in the total sentence. There were aggravating factors although it has to be acknowledged there were mitigating factors too. That all needed to be carefully weighted in the balance. No criticism is made or could be made of the judge's view that the notional sentence for count 4 would have been 8½ years' imprisonment. In the result, the judge imposed a sentence of 6 years for the offence in count 4. The fundamental difficulty, in our judgment, is that the judge reduced the sentences on counts 2 and 3 from the starting point of 8 years to 6 years, and then reduced them again to 5 years. That is below the category range even for a single offence. In our judgment, even having regard to totality as between each of the 2013 offences and the overall totality when the 2020 offences are also taken into account, that was too great a reduction. If one had taken each set of offences alone and added up the appropriate sentences, that would have suggested a total sentence of 16 years' custody or even longer. We acknowledge then that had to be reduced having regard to the principle of totality. Ultimately we have reached the conclusion that the just and proportionate sentence in this case would have been one of 13 years imprisonment. That can properly be achieved by increasing the sentence of 5 years on counts 2 and 3 to one of 6 years and the sentence on count 4 from one of 6 years to one of 7 years. In those circumstances, we do not think it necessary to alter the sentences on counts 1 and 6 which were, and will remain concurrent. The sentences on counts 2 and 3 will be concurrent to each other but the sentence on count 4 will be consecutive as it was before. Accordingly that makes a total sentence of 13 years' imprisonment. Conclusion For the reasons we have given, we grant the Solicitor General leave to refer these sentences to this Court under section 36 of the 1988 Act. On that Reference we quash the sentences on counts 2, 3 and 4. We substitute sentences of 6 years on each of counts 2 and 3 made concurrent and a sentence of 7 years on count 4 made consecutive. The total sentence, as we have said, is therefore 13 years' imprisonment. BAILII: Copyright Policy | Disclaimers | Privacy Policy | Feedback | Donate to BAILII