Court of Appeal Reproaches Misapplication of Sentencing Guidelines in R v Dylan Joshua Benjamin Marshall

Citation: [2023] EWCA Crim 1640
Judgment on


The case of R v Dylan Joshua Benjamin Marshall is a significant judgment handed down by the Court of Appeal (Criminal Division) that exemplifies the application of sentencing principles regarding offences involving indecent images of children. It provides insight into the proper categorization of such offences and emphasizes the importance of sentencing according to the correct legal framework.

Key Facts

Dylan Joshua Benjamin Marshall, having pleaded guilty to three charges related to making indecent images of children, received an original sentence of 30 months’ imprisonment for each count, to be served concurrently. On appeal, the Appellant challenged the classification of his actions and the resulting sentence, arguing against the Crown Court at Chelmsford’s application of the sentencing guidelines for distribution rather than possession. The appellant had been found with 35 Category A, four Category B, and 53 Category C indecent images, the creation of which spanned from March to September 2022.

Legal principles applied in this case revolve around the interpretation of offences under the Protection of Children Act 1978 and the sentencing guidelines. The appellate court scrutinized the lower court’s application of sentencing provisions that incorrectly categorized the appellant’s admitted conduct as distribution rather than possession.

Key legal principles include:

  1. Correct Offence Categorization: The court emphasized that sentencing must reflect the offence to which the defendant has pleaded guilty, as elaborated in R v Canavan [1998] 1 WLR 604. This principle ensures that the punishment is directly tied to the offender’s actual conduct.
  2. Sentencing Guidelines Adherence: Sentences should align with established guidelines, here the “making” of indecent images, not “distribution.” The distinction carries material implications for sentencing severity.
  3. Recognition of Rehabilitation Prospects: Reflecting the guideline that a community order with a Sex Offender Treatment Programme requirement can be suitable for short to moderate custodial sentences where there’s sufficient prospect of rehabilitation.
  4. Application of Ancillary Orders: The court discussed the duration of notification requirements and the Sexual Harm Prevention Order, translating the principle that such measures must be proportionate to the reclassified offence severity.


The Court of Appeal decided to set aside the original sentences and replaced them with a community order pursuant to the author of the pre-sentence report’s recommendation. The appellant’s good character, mental health issues, abusive upbringing, and apparent remorse were considered mitigating factors.

The outcomes are as follows:

  • The original 30-month incarceration sentence was quashed.
  • The appellant’s guilty pleas merited a sentencing discount, leading to a community order with specific program and activity requirements.
  • No further punitive sentence was imposed due to time already served and the nature of the revised sentence.
  • Reduction of the period of notification and the Sexual Harm Prevention Order from ten to five years, marking from the date of conviction (13th June 2023).


In R v Dylan Joshua Benjamin Marshall, the Court of Appeal (Criminal Division) has reinstated the principle that the sentencing court must correctly identify the offence category to which a defendant’s actions correlate, adhering to principles laid out in relevant case law, notably R v Canavan. The case emphasizes the necessity of ensuring sentencing alignment with the actual offence and recognizes the importance of rehabilitation as a sentencing goal where appropriate. The court’s approach reaffirms the significance of accurate offence categorization for just and appropriate sentencing.