R v Phillip Michael Lee

This is a renewed application for leave to appeal against sentence after refusal by the single judge.

On 28 August 2025, in the Crown Court at Bournemouth, the applicant pleaded guilty upon re-arraignment to attempting to engage in sexual communication with a child. He was subsequently, on 23 October 2025, sentenced to 14 months' imprisonment and made the subject of a 10-year sexual harm prevention order.

The facts are that, between July 2021 and August 2021, the applicant attempted to engage in sexual communication with a child. Over the relevant period he communicated with "Alice", a 36-year-old woman, and "Mia", her 11-year-old daughter. Both were in fact fictitious profiles operated by undercover police officers. Their chats took place across the online platforms XHamster, Google Hangouts and WhatsApp.

On 14 July 2021, the applicant began communicating with "Alice". He immediately asked whether she had a daughter. "Alice" told him that she had an 11-year-old daughter. The applicant told "Alice" that he liked mothers and daughters and asked "Alice" if she had "done anything" with hers. "Alice" said that she had and asked the applicant what age he liked. He responded that he liked ages 7 and above. The applicant also claimed to have sexually abused the 8-year-old daughter of his best friend's brother. "Alice" asked the applicant whether he was serious about engaging in sexual activity with her 11-year-old daughter and he confirmed that he was. Over the coming days, the chats between the applicant and "Alice" continued. He described in those chats what he wanted to do to "Alice" and "Mia" sexually.

On 20 July 2021 the applicant began communicating directly with "Mia", telling her that he wanted to meet up with her and "Alice" and that he wanted to engage in vaginal and oral sex with "Mia" whilst her mother was present. When Mia said that she was a bit scared, the applicant replied by saying "It's the first time you have sex with a man, you will be scared but mum will be watching". Further conversations between "Alice" and the applicant took place that day and arrangements for meeting up were discussed.

On 14 August 2021 the applicant communicated with "Mia" again. He asked her whether she had missed him. "Mia" sent the applicant a picture of a child of approximately 11 years old. The applicant sent her a photograph of himself in return. He told "Mia" that she was beautiful and that he had got an erection looking at her picture. He went on to say that he was going to try to take time off so that they could meet in a hotel. The applicant then described the sexual activity he wanted to take place between them. At some point he sent "Mia" a photograph of his erect penis. The following day the applicant discussed with "Alice" the possibility of them all meeting on 26 August 2021. The applicant then appeared to become concerned that he might go to the meeting and find men waiting for him. The communications ended on 25 August 2021 and the applicant was arrested at his home address on 8 September 2021.

The applicant subsequently, albeit only very late in the day, pleaded guilty to the single count that he was facing.

Mr Lara, who appears before us today just as he did before the sentencing judge, submits, in the first place, that the length of the sentence that the applicant received was manifestly excessive, and secondly, that it was wrong in principle, as he puts it, that the judge did not make a suspended sentence order and instead sentenced the applicant to immediate imprisonment. It was in relation to the second of these putative grounds that Mr Lara focused his oral submissions before us today.

We have considered all that Mr Lara has had to say in support of these grounds, both in writing and orally. We conclude, however, in agreement with the single judge, that there is no merit in either of them.

Dealing with the first of the grounds, albeit that Mr Lara did not focus on this ground during the course of his oral submissions, Mr Lara's submission in writing had been that the judge placed disproportionate weight on what he described as a "flawed pre-sentence report"; that the judge wrongly observed that the applicant had no significant personal mitigation; and that the judge failed to make any downward adjustment to reflect the delay that had occurred in the case.

As to the first of these matters, the single judge noted that the judge was entitled to rely on the findings of the pre-sentence report in reaching the appropriate sentence in the applicant's case and, furthermore, that the judge had read all of the reports and was well placed to determine the basis for sentence. The fact therefore that the pre-sentence report did not elaborate on the applicant's mention of a dis-associative voice is immaterial. The judge would have seen what was stated about this in the psychiatric report, which was itself mentioned in the pre-sentence report. The judge indeed referred specifically to what the applicant had to say concerning such a voice. The suggestion, in such circumstances, that the pre-sentence report was flawed or that the judge was somehow wrong to place reliance on it or that the judge did not have the point on board is not sustainable.

Nor is it right to say, as Mr Lara does, that the judge failed to make a downward adjustment for the applicant's personal mitigation, since he expressly did so, saying that he balanced the aggravating factors and the mitigation to reach a notional sentence after trial of 18 months' imprisonment. He was entitled to find that there was no significant personal mitigation, although it should be observed that he nonetheless acknowledged the applicant's mental health difficulties. The fact that he considered that, on the basis of the reports before him, neither the applicant's ADHD nor his EUPD provided much explanation or rationale for the applicant's behaviour is a matter that the judge was entitled to consider. Indeed, as the single judge rightly noted, the psychiatric report does not suggest otherwise, and it is particularly of note that the applicant told the psychiatrist that he engaged in the chats for himself rather than due to any command from any dis-associative voice. On the contrary, again as noted by the single judge, the psychiatrist specifically stated that the applicant understood that what he was doing was wrong and understood the consequences of his actions.

As to delay, the judge was under no obligation to reduce the sentence to reflect the fact that there was delay between the applicant's arrest and the time that he was, as Mr Lara puts it, "brought before the court" in July 2024. The more so, given that it was another year before the applicant chose, on the first day of trial, to change his plea to guilty. The applicant could have accepted his guilt much earlier and, had he done so, there would not have been the delay that there was.

This brings us to the second of the grounds raised, the ground on which Mr Lara focused his submissions before us today, namely that the judge, as Mr Lara put it in his written submissions, "improperly" imposed a sentence of immediate custody.

"... I remind myself of the guidelines. Factors indicating it may be appropriate to suspend a sentence include a realistic prospect of rehabilitation in the community. That does not, in my judgment, for the reasons I have given, apply in your case. The offender does not present a high risk of re-offending or harm. That does not apply. Strong personal mitigation. You have personal mitigation; it is not unduly strong. Immediate custody will result in significant harmful impact upon others, including dependent children. On the basis of the report and what I have heard, whilst your daughter is in your care, you are not her official carer. I accept that she also suffers with ADHD but given the contents of the Pre-Sentence Report, she is able to live with her mother.

"The judge properly considered whether he should suspend that sentence. He had regard to the Imposition Guideline and assessed the criteria set out therein. He was entitled to come to the conclusion that the sentence should not be suspended for the reasons that he gave. In particular there was no evidence to support your assertion that your daughter would be significantly impacted by your incarceration given that she is able to live with her mother. Whether or not to suspend a sentence is a matter of judicial discretion. It is not arguable that the decision to impose immediate custody was not properly open to the judge in this case."

We entirely agree with those observations.

As to the particular submission advanced before us today by Mr Lara, namely that there was a realistic prospect of rehabilitation and, as a result, the judge ought to have reached the opposite conclusion to that which he in fact reached and so decided to suspend the sentence, Mr Lara highlighted for these purposes not only the applicant's mental health condition, as indeed acknowledged by the judge, but also the fact that the applicant had, in circumstances where there was no probation support, for some 4 years between commission of the offence and the matter coming before the court for sentence not engaged in any further offending. The difficulty with this is that, as the judge noted earlier in his sentencing remarks, the pre-sentence report writer "has significant doubts about your motivation in relation to any form of probation interventions". In those remarks the judge had in mind the reference in the pre-sentence report to the applicant's disengagement from the community mental health team. It is that factor to which the judge was plainly referring in the initial part of his observations, as previously set out, when deciding whether to suspend the sentence. In such circumstances, the judge, we conclude, was entirely entitled to reach the conclusion that he did and so to decide that it was not appropriate in the applicant's case to suspend.

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