R v Martyn Johnson [2026] EWCA Crim 550

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[2026] EWCA Crim 550

IN THE COURT OF APPEAL

CRIMINAL DIVISION

Between

R E XCrown

London

WC2A 2LL

ON APPEAL FROM THE CROWN COURT AT CAMBRIDGE

(HIS HONOUR JUDGE ENRIGHT) [35NT1982024]

Case No 2026/00262/A2 Thursday 16 April 2026

B e f o r e:

LORD JUSTICE DINGEMANS

Senior President of Tribunals

MR JUSTICE SOOLE

MRS JUSTICE O'FARRELL DBE

____________________

ATTORNEY GENERAL'S REFERENCE

UNDER SECTION 36 OF

THE CRIMINAL JUSTICE ACT 1988)

____________________

- v -

Between

MARTYN JOHNSON

____________________

Computer Aided Transcription of Epiq Europe Ltd,

Lower Ground Floor, 46 Chancery Lane, London WC2A 1JE

Tel No: 020 7404 1400; Email: rcj@epiqglobal.co.uk (Official Shorthand Writers to the Court)

_____________________

Miss J Newcombe appeared for Attorney General

Miss S Marsh appeared for Respondent

____________________

J U D G M E N T

(Approved)

Date 2026-04-16

[1]This is an application by His Majesty's Solicitor General, under section 36 of the Criminal Justice Act 1988, for leave to refer to this court a sentence which she considers to be unduly lenient. The Respondent, Martyn Johnson, is 38 years of age. On 19 December 2025, in the Crown Court at Cambridge, having earlier pleaded guilty to two offences of stalking involving serious alarm or distress, Mr Johnson was sentenced to a conditional discharge for one year on each count, concurrent.

[2]It is submitted by Miss Newcombe on behalf of the Solicitor General that the sentence was unduly lenient because the judge placed too much reliance on both the victim personal statement and the time served in custody to reduce what should have been a custodial sentence to conditional discharges.

[3]The Solicitor General referred to overarching principles for domestic abuse which make it clear that a sentence for an offence in a domestic context should be determined by the seriousness of the offence, and not by any wishes of the victim. Reliance was also placed on judgments of the Court of Appeal Criminal Division about the effect of time spent in custody.

[4]It was submitted by Miss Marsh, who appears on behalf of Mr Johnson, that: there was substantial mitigation available to Mr Johnson; that the judge was right to take into account in the sentencing process the time served by Mr Johnson; all in all, the sentence passed was an appropriate sentence; and that although it might be considered lenient, it was not unduly lenient. Any appropriate sentence should mean that Mr Johnson should not return to custody.

[5]We are grateful to both Miss Newcombe and Miss Marsh for the excellence of their written and oral submissions.

Factual background

[6]Mr Johnson and the victim of the offending, to whom we shall refer to as "B", had a relationship from April 2024 to about June 2024. After the separation, Mr Johnson persistently called and messaged B. On 3 November 2024, B texted Mr Johnson saying that she did not want to be with him anymore and blocked him.

[7]Mr Johnson continued to contact B. In a 24-hour time frame, she received over 80 calls including some from the landline of Mr Johnson's parents. He continued to send messages, in which he pleaded for B to meet him and said that he would kill himself without her.

[8]On 4 November 2024, Mr Johnson followed B as she drove to Skegness. When she parked her car near a store, Mr Johnson drove up alongside her and then drove off, hitting her car door with the side of his van.

[9]On 5 November 2024, Mr Johnson was waiting for B when she came out of a chip shop. He begged her to talk to him. At that time she was with a grandchild.

[10]Mr Johnson was arrested on 19 November 2024. He was bailed under police investigation with a condition not to contact B directly or indirectly. Thereafter, in breach of bail, Mr Johnson continued to contact B by calls and messages, including a call from his parents' landline when he said, "I can't lose you. You're going to stay with me". He messaged her daily from various numbers, asking her to take him back. B blocked each number.

[11]On 22 November 2024, Mr Johnson called B all day before attending her mother's address and banging on the door. Her mother's boyfriend answered the door and told Mr Johnson that they were leaving. They left 10 or 15 minutes later.

[12]On 24 November, Mr Johnson contacted B and said that he needed to see her and that he could not be without her, and that he felt trapped at his mother's address. He said that he would come and see her at night when it was dark so that he would not be seen by the police. He attended B's address that evening.

[13]On 26 November, the police attended B's address and found Mr Johnson hiding in a wardrobe. He was arrested. B said that she did not want to be in a relationship with him but was unable to get out of the situation due to his actions. It was at that stage that Mr Johnson was charged with stalking involving serious alarm or distress. He pleaded not guilty and was remanded on conditional bail until trial.

[14]Thereafter matters seemed to calm down until the trial date on 6 October 2025. However, we were told in the course of submissions, and accept, that it seems that the relationship continued.

[15]On 6 October 2025, Mr Johnson changed his plea to guilty, for which he was entitled at that stage to ten per cent credit. He was bailed pending sentence, with a condition not to contact B.

[16]The second set of offences occurred in breach of his bail conditions. Mr Johnson stayed at B's address between 6 and 10 October 2025. A further bail condition was added on 10 October that he should not enter an exclusion zone. Mr Johnson's mother had to call to say that he needed to return home to have his electronic tag fitted. That was fitted on 11 October. However, Mr Johnson continued to call and message B throughout the day and night. He transferred B money on occasions, which B transferred back with the reference "leave me alone".

[17]On 13 October, Mr Johnson attended the workplace of B's son. B arrived and stopped her car. Mr Johnson grabbed her keys. Her son punched Mr Johnson and was able to take the keys back. B called the police.

[18]On 17 October 2025, Mr Johnson was charged with the second stalking offence. He pleaded guilty to that at the first opportunity and was therefore entitled to 33 per cent credit for the guilty plea.

[19]On 18 October 2025, Mr Johnson was remanded in custody, where he remained until the sentencing hearing on 19 December 2025. It is apparent from all that we have seen that Mr Johnson benefited from his time in custody. He has undertaken some courses. There were issues with his mental health which were addressed. It was said that he was released with a different mindset.

[20]In a pre-sentence report which was before the sentencing judge it was recorded that Mr Johnson had expressed a willingness to undertake unpaid work and was assessed as suitable for an accredited program. The author of the pre-sentence report said, however, that it was considered that Mr Johnson was not manageable in the community. Mr Johnson was also referred for a primary mental health treatment report, which was produced on 17 December 2025. Because of long-term issues around his mental health, he was said to be unsuitable for that service and it was recommended that he be referred to the community mental health team.

[21]There were victim personal statements. In one, B said that she had suffered as a result of being controlled by Mr Johnson and his attempts to contact her, which were unwanted. In a second statement, B said that she wanted to get back with Mr Johnson and did not want a restraining order.

Sentencing

[22]It was common ground before the judge that both of the offences of stalking were category C2 offences for the purpose of the offence specific guideline, which gives a starting point of 12 weeks' imprisonment, with a range from a high level community order to 35 weeks' imprisonment.

[23]There were aggravating factors. There was offending on police bail and then on court bail. It took place in a domestic context. B was vulnerable because of anxiety and depression. The mitigating factors included: Mr Johnson's own depression and anxiety; the fact that he had worked and continued to work; and he had shown himself willing to work throughout.

[24]During the sentencing hearing the judge was told that Mr Johnson had spent nine weeks in custody. He had also been on a qualifying curfew for about two months, which was calculated to be the equivalent of a further 25 days in custody.

[25]During the sentencing hearing the judge referred to the second victim personal statement and said that a restraining order was out of the question. He made some very brief sentencing remarks. The judge further said that in the light of the victim personal statement he did not consider it sensible to impose a custodial sentence, and that as Mr Johnson had served the equivalent of about 20 weeks' imprisonment, he would impose a conditional discharge.

[26]This court has today received a reference from Mr Johnson's employer which says that since his release Mr Johnson returned to work and has been a valuable team member, maintaining a record of perfect time keeping and doing everything that was asked of him without any issues. The employer went on to confirm that: Mr Johnson was living with B; that the employer had spoken to B; the relationship was stable; and they were engaged and intended to marry.

Relevant principles

[27]The principles applicable to Attorney General References can, so far as is material to this Reference, be summarised as follows. First, the judge at first instance is particularly well placed to assess the weight to be given to competing factors when considering the sentence to impose. Secondly, a sentence is only unduly lenient where it falls outside the range of sentences which the judge at first instance might reasonably consider appropriate. Thirdly, leave to refer a sentence should only be granted by the court in exceptional circumstances and not in borderline cases. Fourthly, section 36 of the 1988 Act is designed to deal with cases where a judge has fallen into gross error. Fifthly, even where the court considers that a sentence was unduly lenient, it has a discretion as to whether to exercise its powers.

[28]It is right to note, as was submitted on behalf of the Solicitor General, that in the domestic abuse overarching principles guideline published by the Sentencing Council, it is made clear that a sentence imposed for an offence committed within a domestic context should be determined by the seriousness of the offence, not by any express wishes of the victims. The reasons given by the Sentencing Council for that approach, which mirror the approach taken by the Court of Appeal Criminal Division in a number of cases, are that: sentencing is for the wider public; no victim is responsible for the sentence; and there was a risk that pleas for mercy would be made by victims because of threats made to them by, or fear by them of, an offender. Further, the offence specific guideline, in common with all guidelines, makes it clear that it is at the end of the sentence (step 10) that credit for time spent on tagged curfew should be considered.

[29]In the course of the written submissions, we were referred to two cases being R v SA

[2022] EWCA Crim 1790

, and R v Mohamed

[2025] EWCA Crim 235

, neither of which is reported and neither purports to establish any new principle. They were both cases where immediate custody was required. In SA the sentencing judge had missed aggravating factors and was distracted by issues of time spent on curfew according to the judgment; and in Mohamed there had been a wrong categorisation of harm, and the judge in that case had said that seven months spent in custody had tipped the balance.

Disposal of this Reference

[30]In the case with which we are concerned, this was a difficult sentencing exercise for the judge. It is clear that the offences crossed the threshold for a custodial sentence, but any immediate custodial sentence that could have been imposed had effectively been served before the sentencing exercise. This was because the starting point for each offence was 12 weeks, the range was a high level community order to 35 weeks, and although there were two offences and a number of aggravating factors, Mr Johnson had served, according to the judge’s calculations, the equivalent of 20 weeks.

[31]It is true that if the judge had imposed a custodial sentence in this case, any release would have been on licence, albeit for a short period. However, it is also relevant to note that the Sentencing Council have produced guidelines on the imposition of community and custodial sentences, and at paragraph 2 under the heading “Thresholds” make the point that:

"A custodial sentence must not be imposed unless the offence … was so serious that neither a fine alone nor a community sentence • Even where the seriousness of the offence indicates that the threshold for a custodial order has been passed, a custodial sentence should not be imposed if in all the circumstances of the case it is appropriate to impose a community order, for example, if a community order achieves the purposes of sentencing."

[32]In circumstances where the custodial part of the sentence had been effectively served by imprisonment between October and December, and in circumstances where a suspended sentence would not be appropriate, in part because any breach would simply lead to the imposition of the sentence which had already been served, the judge was required to take into account the purposes of sentence and come to a sentence that was appropriate. It is right, as Miss Newcombe has pointed out, that the judge was wrong to suggest in his short sentencing remarks that what B had said in her second victim personal statement might be determinative about whether a custodial sentence should be imposed. It is, however, only fair to the judge to point out that he had earlier in the discussion with counsel pointed out that effectively the custodial part of the sentence would already have been served by Mr Johnson by reason of his imprisonment between October and December 2025.

[33]Given the way in which the sentencing remarks might be read as sending a wrong message that the views of the victim of domestic violence offences to the effect that the offender should be spared custody might determine the sentence imposed by the court, we grant leave for the Reference. This is to emphasise that, for the reasons given in paragraph 27 above, those views do not determine the sentence. Sentencing is for the court and no victim is responsible for the sentence. This approach reduces the risk that future victims will be targeted by an offender to persuade them to include in a victim personal statement a plea that the offender should not be imprisoned.

[34]As to the sentence itself, we consider that many judges might well have imposed a high level community order with an unpaid work requirement, as was at least part recommended in the pre-sentence report, but we are unable to say that the sentence imposed by the judge was unduly lenient.

[35]For all those reasons, we grant leave for the Reference but we dismiss it. ___________________________ 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 ______________________________