R v Kevin Kenyon [2025] EWCA Crim 1238

WARNING: reporting restrictions may apply to the contents transcribed in this document, particularly if the case concerned a sexual offence or involved a child. Reporting restrictions prohibit the publication of the applicable information to the public or any section of the public, in writing, in a broadcast or by means of the internet, including social media. Anyone who receives a copy of this transcript is responsible in law for making sure that applicable restrictions are not breached. A person who breaches a reporting restriction is liable to a fine and/or imprisonment. For guidance on whether reporting restrictions apply, and to what information, ask at the court office or take legal advice.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.[2025] EWCA Crim 1238
IN THE COURT OF APPEAL
Venue Royal Courts of JusticeDate Friday 12 September 2025
Strand
London
WC2A 2LL
Before
LORD JUSTICE SINGHMR JUSTICE LAVENDERMR JUSTICE PEPPERALLReference by the Attorney General under s.36 Criminal Justice Act 1988
Between
REXCrownv
Between
KEVIN KENYON__________Computer Aided Transcript of Epiq Europe Ltd,Lower Ground, 46 Chancery Lane, London WC2A 1JETel No: 020 7404 1400; Email: rcj@epiqglobal.co.uk (Official Shorthand Writers to the Court)_________MS J FAURE-WALKER appeared for Solicitor GeneralMR K COLLEY appeared for Offender________JUDGMENT(Approved)
[1]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. Introduction[2]This is an application on behalf of His Majesty's Solicitor General for leave to refer sentences to this Court, under section 36 of the Criminal Justice Act 1988 ("the 1988 Act"), on the ground that they were unduly lenient. On 27 March 2025, in the Crown Court at Bradford, the respondent/offender (then aged 45) changed his plea to guilty for offences to which we will shortly refer. On 13 May 2025, the offender was sentenced by Mr Recorder Bryan Cox to an extended determinate sentence, pursuant to section 279 of the Sentencing Act 2020 (or the Sentencing Code) comprising a custodial term of 4 years and 8 months and an extended licence period of 3 years. However, the case was re-listed on 24 July 2025, under section 385 of the Sentencing Code, for adjustment of the sentence and the final sentence was as follows. On count 1, which was an offence of sexual activity with a child, contrary to section 9(1) of the Sexual Offences Act 2003, there was a sentence of 30 months' imprisonment. On counts 4 and 6, which was the same kind of offence, there was an extended sentence passed, comprising a custodial term of 4 years 9 months and 15 days and an extended licence period of 3 years. On count 5, which was an offence of causing or inciting a child to engage in sexual activity, contrary to section 10(1) of the 2003 Act, there was a sentence of 30 months' imprisonment. Since all sentences were made concurrent, the total sentence therefore was an extended determinate sentence comprising a custodial term of 4 years 9 months and 15 days and an extended licence period of 3 years. An appropriate victim surcharge order was imposed. The offender was made subject to a sexual harm prevention order until further order. Since he had been convicted of an offence listed in Schedule 3 to the Sexual Offences Act 2003, the offender was required to comply with the provisions of Part 2 of the Act, notification to the police for an indefinite period. Since he had been convicted of an offence specified in the Schedule to the Safeguarding Vulnerable Groups Act 2006 (Prescribed Criteria and Miscellaneous Provisions) Regulations 2009, the offender will or may be included in the relevant list by the Disclosure and Barring Service.[3]On this application, no complaint is made on behalf of the Solicitor General as to the imposition of an extended sentence on the ground that the offender was found to be dangerous in the statutory sense but it is submitted that the custodial term was unduly lenient. The Facts[4]The facts can be set out by reference to the agreed statement in the Final Reference. All the offences occurred on the afternoon of 29 December 2024. In summary, a 15-year-old girl asked the offender to buy her vodka. He agreed. They walked to a place where sexual activity started, then another place where they engaged in full intercourse and other sexual activity. The victim was drinking the vodka and felt increasingly drunk. No contraception was used. In interview under caution, the offender claimed he had believed the victim to be older and that he had ejaculated outside the victim's body. The offender had previously been convicted of sexual offences against another girl under the age of 16 and of breaching notification requirements and other court orders on numerous occasions. At the time of the index offending he was on licence.[5]In more detail the facts are as follows. On the afternoon of 29 December 2024, a 15-year-old girl was in Bradford town centre having told her parents that she was going shopping. She wanted alcohol. She approached the offender. They had not met before. She confirmed she had money and asked him to buy vodka. He went to a supermarket, purchased the vodka and gave it to her. He grabbed her by the waist. He said she was beautiful. He kissed her and she reciprocated, the kiss lasting about 20 seconds. He asked her to hang out with him. She felt a bit startled and worried but did not want to refuse him because he had bought her vodka. She walked with the offender to the area of the Crown Court. They sat on some steps. She was drinking the vodka, he was smoking but not drinking. They had general conversation. He said his name was "Kenny" and he had been in prison for stealing. She told him her age and he said age was just a number and he would not care. He told her he was a fair bit older but did not state his exact age. She had a feeling that she did not want to be there. The offender touched her over her clothing and said he wanted to put his penis in her vagina. He started touching her vagina over and under knickers and then he put his fingers in her vagina (count 1). They were sat in that location for about 10 minutes. He told her he wanted to go somewhere quiet and said something like:
"You're a horny little thing"
. He took her to a car park nearby. It was getting dark. She felt tipsy and a bit dizzy. She was still drinking vodka.[6]At the car park they sat on a bench. He touched her vagina again over clothing. He continued to talk to her. He took her pants off. He turned her round, so that she was facing the wall and put his penis inside her vagina (count 4). She was expecting it but did not particularly want it to happen. When he stopped they sat down on the bench for about 5 minutes. She put her pants back on. She had another drink. He kissed her again on the lips. He put her hand on his penis over clothing (count 5). He bent her over and put his penis in her vagina again (count 6). She was now feeling very drunk. When it stopped she felt very weak and tired and dropped to the floor on her hands and knees. No contraception was used. He crouched down and asked if she was okay. She felt confused but did not feel pain at this stage. He helped her back to the bench. She said she had to go. He suggested going somewhere else, perhaps to a hotel where they could spend the night. She again said she had to go. She responded to a text from her mother. He walked her to a bus stop. He told her he would text her when he had a new SIM. He stopped her falling to the floor. He took the bottle of vodka from her and kissed her on the lips. By this time two-thirds of a litre of vodka had been consumed. When she got home she contacted Childline. She went to hospital for an unrelated matter. At hospital she told her mother what had happened that afternoon.[7]The defendant was identified by police and arrested. During interview under caution he said that the victim was older than 16. He said he had begging in the town centre when she had approached him. He also said that he had ejaculated outside her body. Procedural History[8]On 1 January 2025, the offender appeared at the Magistrates' Court. He was sentenced to the Crown Court in custody. On 21 January 2025, he appeared at the Crown Court for a plea and trial preparation hearing. He pleaded not guilty. Pre-recorded cross-examination of the victim under section 28 of the Youth Justice and Criminal Evidence Act 1999 had been fixed for 31 March 2025. The trial was due to take place on 5 August 2025.[9]On 17 March 2025, a ground rules hearing took place in preparation for the pre-recorded examination. By an email dated 19 March 2025, the offender offered guilty pleas. On 27 March 2025, he pleaded guilty to counts 1, 4, 5 and 6. This was acceptable to the prosecution. Counts 2 and 3 were ordered to lie on the court's file. Sentencing was adjourned for pre-sentence reports to 29 May 2025. The sentencing framework[10]The maximum penalty for sexual activity with a child, contrary to section 9 of the 2003 Act and causing a child to engage in sexual activity, contrary to section 10 is 14 years' imprisonment. The Sentencing Council has issued a Definitive Guideline on Sexual Activity with a Child/Causing or inciting a child to engage in sexual activity with effect from 1 April 2014. At step 1, in the sentencing exercise, the court is required to determine the offence category. The following factors are relevant in step 1 of the guideline. Harm, category 1, penetration of the vagina (that was the subject of counts 1, 4 and 6) culpability category A, because there was a significant disparity in age. At step 2, the court must consider the starting point and the category range. The Definitive Guideline recommends in the case of an offence falling into category 1A a starting point of 5 years' custody with a category range of 4 to 10 years. The sentencing process[11]The offender was born on 8 December 1979 and was at relevant times aged 45. He had many previous convictions which had started in his teenage years and between 1996 and 2009, this was mainly acquisitive offending. Child sex offences and failures to comply with requirements started in December 2009 when he was 20 years old. In particular, note should be made of the following matters. In December 2009 to January 2010, he committed two offences of sexual activity with a child for which he was sentenced in February 2011 to 32 months' imprisonment. The victim was a 14-year-old girl, and they had formed a sexual relationship after 2 months of communication. He claimed to the author of the pre-sentence report prepared for those proceedings, that the victim said she was 17. The author suggested that substance misuse was a factor in the offending.[12]The offender had failed to comply with notification requirements on 5 December 2013, 12 December 2013 and 18 November 2015, for which he was sentenced to fines. He failed again to comply with notification requirements, possessed a knife in a public place in 2017, for which he received a suspended sentence of imprisonment with a drug rehabilitation requirement. He received the same type of sentence for other offences committed afterwards including begging in a public place in March 2017. On 17 further occasions he failed to comply with notification requirements. He was sentenced to terms of imprisonment. The final occasion was July 2024, when he received a sentence of 26 weeks' imprisonment.[13]In the same period, in January 2021, he breached a sexual harm prevention order for which he was sentenced to 8 months' imprisonment. He committed the offence in December 2023. He was sentenced to 3 months' imprisonment to be served consecutively to a sentence imposed for failing to comply with a community order.[14]In the present matter the author of the pre-sentence report noted the many features of notification requirements and other orders largely related to the failure to notify the police of an address or to report to a police station when the offender was homeless. One previous breach related to his staying temporarily with a friend who had children. A pattern emerged whereby the offender would be released from prison with no fixed abode, quickly relapse into substance misuse and failed to report to the police as required. He had not had fixed accommodation since 2017. He would use short-term placements to store his belongings and return sporadically making it challenging to account for his whereabouts.[15]Of particular significance is this. The offender was released from prison on 23 December 2024 on licence. His licence conditions prohibited him from having contact with a female under the age of 18. His licence was revoked after his arrest for the instant offences committed on 29 December 2024 but it is to be noted that the offending took place six days after his release from prison and towards the beginning of the period of licence.[16]The sentencing court had, as this court has been able to see, reports. According to the author of the pre-sentence report the offender denied knowing the victim was only 15. He attempted to minimise his behaviour. He was reluctant to discuss the offence and suggested it was destroying his life. He said he had been drinking alcohol all day and smoking Spice and was begging when the victim approached him. He suggested that the victim agreed to buy him some food and share the vodka with him and, at that point, he viewed the victim as someone to talk to rather than to have sex with, although he found her attractive. The author considered the offender's account of the offence together with his account of what the victim said of her personal circumstances was an attempt to accredit responsibility onto the victim. The author considered the instant offending represented an escalation in that offending. In relation to the offender's noncompliance with the Probation Service, the author stated that it was not accepted that attitudes have not played a role in his engagement and/or compliance. The author of the report assessed him as posing a high risk of further offending relating to contact sexual offences and a high risk of serious harm to children.[17]The court also had the benefit of a psychiatric report by Dr Paul Beavan served on behalf of the offender. The offender had told Dr Beavan that there was no past psychiatric history. After reviewing available information and interviewing the offender, Dr Beavan concluded that he did not suffer from any form of mental disorder, although there had been undoubtedly psychological trauma growing up, any recent problems had been with substance misuse.[18]Dr Beavan observed the offender seems to show little victim empathy, saying both parties were to blame, putting the blame on drugs and alcohol and, to some extent, on the victim rather than taking responsibility himself. Given that the offences referring to the previous episode of contact offending were 15 years apart, Dr Beavan was not sure if the dangerousness test was satisfied. We should also mention that this Court has received an update report from the Probation Officer based at the prison where the respondent is being held dated 18 August 2025.[19]When passing sentence the Recorder said that there was high culpability based on significant disparity in age and vulnerability of the victim, albeit the Recorder did not in terms refer to the category A indicator of specific targeting of a particularly vulnerable child. He said that she was affected by alcohol but accepted that the offender did not ply her with it to incapacitate her. The Recorder explained his finding of dangerousness having considered Dr Beavan's report and the pre-sentence report. The Recorder treated counts 4 and 6 as the lead offences. He said the custodial term would have been 6 years for each offence to be reduced by 20 per cent for the guilty pleas. He passed the other sentences which we have already mentioned. He considered that the sentences would not fully address the risk posed by the offender and so imposed an extended licence period of 3 years. Submissions on behalf of the Solicitor General[20]On behalf of the Solicitor General, Ms Faure-Walker accepts that the Recorder identified the correct category and starting point. This was a category 1A case. She accepts that the Recorder correctly identified the starting point recommended in the guideline is 5 years' custody with a category range of 4 to 10 years. However, she submits that the combination of aggravating features in this case required an elevation from that starting point of far more than the 1 year which in fact occurred. In summary, she relies upon the following factors:(1) Relevant previous convictions having regard to (a) the nature of the offence to which the conviction relates and its relevance to the current offence and (b) the time that has elapsed since conviction. In particular, she notes that there was previous contact sexual offending involving a female child and multiple breaches of measures designed to decrease precisely this kind of sexual offending.(2) The offences were committed on licence just six days after release.(3) There was ejaculation.(4) No contraception was used.(5) The vulnerability of the victim who was affected by alcohol. Furthermore, Ms Faure-Walker submits that if concurrent sentences are to be imposed, the custodial term should be increased to reflect an offender's overall criminal behaviour. Whether the instant case is viewed as involving a single but prolonged incident or two incidents reflecting the different places where the offending took place but closely connected in time and space, an increase in sentence was therefore warranted.[21]No issue is taken by Ms Faure-Walker with the reduction of 20 per cent for the guilty pleas but she does submit the mitigating factors in this case did not come close to outweighing the aggravating factors. Submissions on behalf of the respondent offender[22]On behalf of the respondent Ms Colley submits that the sentence passed in this case was not unduly lenient. She submits that the Recorder was correct in his approach to sentence having regard to the aggravating and mitigating factors and the principle of totality. It is accepted that the respondent's previous conviction is a statutory aggravating factor but regard must be had to the time elapse of 15 years since that conviction. Furthermore, it is accepted the fact there was ejaculation, the fact that the offences were committed on licence and the vulnerability of the victim are all aggravating factors. However, it is not accepted that the fact that no condom was used is a further aggravating factor. It is not expressly identified as such within the guideline. The respondent ejaculated outside the victim's body and Ms Colley submits that care must be taken not to double count the fact that no condom was worn having already had had regard to the fact of ejaculation. She submits that the Recorder was correct to take counts 4 and 6 of the lead offences. Further, he was correct in his approach to balancing the features of the case to reach the correct sentence within the range set out in the Definitive Guideline. In particular, she submits the following features were correctly identified by the Recorder:(1) The relevant previous conviction was 15 years earlier and there had been no further sexual offending.(2) The previous relevant conviction had distinguishing features from the index offences, namely that it did not concern a stranger and it was in the context of a relationship albeit an inappropriate one.(3) The index offending was not predatory but opportunistic.(4) The defendant’s cyclical lifestyle of homelessness and substance misuse contributed to the pattern of his offending history and breach of court orders. She submits that those breaches can very largely be attributed to the fact that he was not able to give a fixed address and report to the police accordingly.(5) The respondent had made efforts to rehabilitate within the custodial setting.[23]At the hearing before this Court Ms Colley has also emphasised that she submits that there was remorse by the offender, as reflected in the fact of his pleading guilty at a stage in the proceedings prior to when cross-examination would have had to take place of the victim in a recorded fashion. Nevertheless, as Ms Faure-Walker has responded to this Court, care needs to be taken in relation to whether there was true remorse in this case, particularly having regard to the contents of the pre-sentence report and the medical report which we have earlier outlined.[24]In conclusion, Ms Colley submits that the Recorder was entitled to arrive at a notional sentence of 6 years having elevated it by 12 months from a starting recommended in the guideline of 5 years' custody. Further, she submits that he was right to impose concurrent sentences which were properly reflected by setting the notional sentence at 6 years. Assessment.[25]We remind ourselves of the principles which govern applications under section 36 of the 1988 Act. The seminal decision of this Court which was given shortly after section 36 of the 1988 Act came into force was Attorney-General's Reference (No 4 of 1989) (1990) 90 Cr App R 366. At page 371 Lord Lane CJ said:
"The first thing to be observed is that it is implicit in the section that this Court may only increase sentences which it concludes which were unduly lenient. It cannot, we are confident, have been the intention of Parliament to subject defendants to the risk of having their sentences increased... 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."
Later on the same page Lord Lane said:
"... it must always be remembered that sentencing is an art rather than a science; that the trial judge is particularly well placed to assess the weight to be given to various competing considerations; and that leniency is not in itself a vice. That mercy should season justice is a proposition as soundly based in law as it is in literature."
The Court also observed that even where it considers that the sentence was unduly lenient, this Court still retains a discretion as to whether to exercise its powers to increase a sentence.[26]We would also note what was said by this Court in Attorney-General’s Reference No 132 of 2001 (Bryn Dorian Johnson) [2002] EWCA Crim 1418; (2003) 1 Cr App R(S) 41. At [24] Potter LJ said the purposes of a system of Attorney-General References include:
"... the allaying of widespread concern at what may appear to be an unduly lenient sentence, and the preservation of public confidence in cases where a judge appears to have departed to a substantial extent from the norms of sentencing generally applied by the courts in cases of a particular type."
[27]The relevant principles are well established and with citations of those two authorities were summarised by this Court in Attorney-General's Reference (Egan) [2022] EWCA Crim 1751; [2023] 2 Cr App R(S) 16 at [3] as follows:
"(1) The judge at first instance is particularly well placed to assess the weight to be given to competing factors in considering sentence. (2) A sentence is only unduly lenient where it falls outside the range of sentences which the judge at first instance might reasonably consider appropriate. (3) Leave to refer a sentence should only be granted by this Court in exceptional circumstances and not in borderline cases. (4) Section 36 of the 1988 Act is designed to deal with cases where judges have fallen into gross error."
[28]Turning to the circumstances of the present case, we have reached the conclusion that this is not a case in which it would be open to this Court to interfere with the assessment of the sentencing court, which fell within the reasonable range afforded to it. The Recorder recognised that the respondent was a dangerous offender and passed an extended sentence so as to protect the public. So far as the length of the custodial term is concerned, the Recorder was prepared to go above the recommended starting point in the guideline but then rightly had to reduce the notional sentence of 6 years to reflect the guilty pleas. No complaint is or could be made about the reduction of 20 per cent for that purpose. The Recorder had regard to all relevant matters. He did not take into account irrelevant matters. This is not a case in which it has been clearly shown that the Recorder fell into gross error.[29]In our respectful view, in substance the submissions for the Solicitor General invite this court to form its own assessment of matters which were essentially ones of evaluation and judgment for the first instance court. As has often been said it is not the role of this Court in applications under section 36 of the 1988 Act to pass sentence on the respondent for a second time. Conclusion[30]For the reasons we have given, we have decided to refuse this application for leave under section 36 of the 1988 Act. Epiq Europe Ltd hereby certify that the above is an accurate and complete record of the proceedings or part thereof. Lower Ground Floor, 46 Chancery Lane, London, WC2A 1JE Tel No: 020 7404 1400 Email: Rcj@epiqglobal.co.uk