An appeal was brought to The Court of Appeal (“CoA”) against the sentencing of the appellant for various sexual offences the appellant had committed when he was a child. The CoA allowed the appeal in part and reduced the sentence of the appellant from 11 to 9 years. This was because the CoA found that during the sentencing exercise the trial judge, after considering the principle of totality and selecting a lead offence, had erred by failing to (i) provide sufficient reasons for the decision; and (ii) reduce the sentence in light of the appellant’s age and other vulnerabilities.
In the judgment, the CoA explained the correct approach to sentencing adults for offences committed when they were children and provided further clarity on the approach in R v Ahmed [2023] EWCA Crim 281, which is the leading case on this point.
Details
Between August 2011 and August 2015, the appellant (then aged between 12 and 16), ACP, performed various illegal sexual acts on his stepbrother (then aged between 6 and 9). The victim did not inform anyone about what had happened until several years later in 2020.
Subsequently, ACP was arrested and tried in the Crown Court at Sheffield. On 18 March 2024, ACP was convicted of two counts of causing or inciting a child under the age of 13 to engage in sexual activity under section 8 of the Sexual Offences Act 2003 and five counts of rape of a child under the age of 13 under section 5 of the Sexual Offences Act 2003.
ACP suffered from mild autism and other mental illnesses. The extent of this was not entirely clear before the Crown Court as two psychiatrists issued conflicting reports. At appeal, a new psychologist’s report confirmed that ACP met the diagnostic criteria for Autism Spectrum Disorder with Mild Intellectual Disability and Recurrent Depressive Disorder.
With this background, the trial judge applied the Sentencing Council’s Overarching Principles Guideline Sentencing Children and Young People and the Sexual Offences Guidelines. She assessed each count independently and determined the appropriate sentence had she been sentencing the appellant as an adult and then applied reductions for his youth and vulnerabilities. Reductions ranged from two-thirds (for the offences committed at age 12) to one-third (for the offence committed at age 16).
After considering the counts individually, the trial judge applied the principle of totality and selected the final count in the series of sexual offences as the lead offence with the other offences treated as aggravating factors. The selection of this count was on the basis that the appellant was older at the time (aged 16). The trial judge concluded by imposing a total sentence of 11 years’ imprisonment to reflect overall criminality.
The Court of Appeal decision
The CoA allowed the appeal only in respect that the trial judge had failed to properly review the sentence and found that the calculation of the overall sentence lacked sufficient explanation and, therefore, reduced the 11-year sentence to 9 years. The trial judge should have stated (i) the total notional adult sentence, and then (ii) the final sentence after applying reductions for age and vulnerabilities. The CoA found the appeal unjustified on all other grounds and was critical of the appellant’s counsel for their approach.
This judgment is particularly useful as the CoA set out two alternative approaches to sentencing that the trial judge could have used, each arriving at the same outcome. The possible routes were:
- to determine the sentence if the appellant been convicted shortly after the last offence (at age 17 or 18) taking into consideration the period over which the offending occurred, the escalating seriousness, and the principle of totality, and then to apply the relevant reductions; or
- to apply the five-step framework for sentencing children set out in the Guideline on Sentencing Children and Young People for Sexual Offences (the “Guideline”), which are:
- Assess the seriousness of the offence, the custodial sentences justified for those committing sexual offences as a child when “any penetrative activity involving coercion, exploitation or pressure is involved”;
- Consider the aggravating factors;
- Consider personal mitigating factors;
- Reduction for a guilty plea; and
- Review the sentence.
Had the trial judge taken either route, the CoA found the sentence would have been 9 years’ imprisonment. The trial judge had opted for Route B and applied Steps 1-3 correctly (note, Step 4 was not relevant) but had failed to properly apply Step 5.
Commentary
This case reinforces the authority of R v Ahmed and the notion that judges must carefully follow all the steps in the Guideline and clearly articulate their reasoning at each step.
In particular, sentencing judges must (i) set out the overall term that would have been imposed had the judge been sentencing an adult, and (ii) set out the final sentence after applying reductions for age and any other mitigating factors.
The fact that the CoA made it clear that the judge must clearly explain how age and vulnerabilities affect the final sentence is a positive development which should ensure that sentencing judges have this at the forefront of their mind when sentencing children or offences committed by children.