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Court of Appeal judgment on extended sentences

R v KC [2019] EWCA Crim 2311

The appellant’s extended sentence of 12 years was quashed following a finding that the trial judge did not take into account his age, both at the time of offending and at the time of sentencing, and in the context of assessing dangerousness.

Details

The appellant was convicted of one count of rape of a child under 13, four counts of causing or inciting a child under 13 to engage in sexual activity and four counts of possession of indecent photographs of a child. He was given a custodial sentence of 12 years in respect of the offence of rape. In regard to the incitement offences, he received concurrent terms of three years and for the indecent photographs offences sentences of seven months, again ordered to be served concurrently. Ancillary orders, including an indefinite sexual harm prevention order, were also imposed.

The trial judge took into account the lack of previous convictions and noted that the appellant had been diagnosed with Attention Deficit Hyperactivity Disorder (ADHD) and Autistic Spectrum Disorder (ASD). A psychological report summarised the appellant’s intellect and functioning as average, and also detailed the appellant’s personality structure as being avoidant, depressed and tense. It referred to the fact that he suffered from poor self esteem and described the appellant as socially awkward, isolated, withdrawn and self-conscious. It referred further to irritability, conflicting feelings and unstable relationships, all likely to impact his ability to integrate effectively in social situations. The trial judge noted that, having observed the appellant through the proceedings, she was of the view that the appellant was intelligent and capable of giving careful evidence with detailed explanations. Although the judge accepted that being in prison would be more difficult for the appellant compared to someone without his particular difficulties, the judge found that none of these factors explained the appellant’s offending.

The issue of dangerousness was considered at sentencing. The pre-sentence report concluded that, should the appellant obtain unsupervised access to prepubescent males, the likelihood of him committing further sexual offences was high. However, the authority of the report did not assess the appellant as dangerous, in light of the fact that the offending began when the appellant was a child and immature and that the imposition of a Sexual Harm Prevention Order would mean that the appellant would be prevented from having unsupervised access to children in the foreseeable future.

Nonetheless, the judge found that the weight to be placed on the appellant’s youth was overridden by the fact that offending continued until he was 16 and that he continued to deny the offences. As such, it was concluded that the appellant posed a significant risk of harm to the public and the dangerousness criteria were met. A custodial sentence alongside an extended licence period was imposed.

The Court of Appeal found that the trial judge did consider the appellant’s age and level of maturity when sentencing. However, it was noted that the trial judge failed to give an explanation as to why she thought a determinate sentence was inadequate for such a young offender and was misplaced in equating a finding of dangerousness with the imposition of an extended sentence. In light of this, and given the appellant’s young age, the fact that his offending was context specific, that he was facing a lengthy custodial sentence, and that he would not have unsupervised access to children, the Court of Appeal concluded that the extended sentence imposed was manifestly excessive.

The Court of Appeal quashed the extended sentence of 12 years in respect of the offence of rape, consisting of a custodial term of eight years with an extension period of four years, and substituted this with a determinate sentence of eight years’ detention.

Commentary

This is a welcome judgment by the Court of Appeal, recognising and stressing the special approach necessary in sentencing children. The Court emphasised that judges must address issues of age explicitly in the context of evaluating dangerousness and sentencing. More specifically, the judgment points to the need for trial judges to explain why a determinate sentence would be inappropriate in the context of such young offenders, particularly in light of their potential for change and development, as well as the possibly context-specific nature of their crimes. These factors, alongside considerations of maturity, are important facets in assessing risk of future harm and are therefore central in the sentencing process.