R v R [2026] EWCA Crim 158
The Court of Appeal upheld the decision to suspend an 18-year old’s sentence for assault by penetration and determined that this sentence was not unduly lenient, having regard to the offender’s age and prospect of rehabilitation in the community.
Details
This decision involved a reference by the Attorney General to review a suspended sentence under section 36 of the Criminal Justice Act 1988, on the ground that it was unduly lenient.
The respondent (R) had pleaded guilty to an offence of assault by penetration, which he committed at the age of 18. The victim was 14 at the time of the offence.
Since R was under 21 at the date of conviction, he was sentenced to two years’ detention in a young offender institution (YOI). The sentence also included 20 days of a Rehabilitation Activity Requirement (RAR), 200 hours’ unpaid work, a 10-year sexual harm prevention order, and a restraining order.
The referral submitted that the two-year sentence was itself too lenient in length and that, in any event, the sentence should not have been suspended.
Decision
The Court ultimately concluded that the sentence, while “merciful”, was not unduly lenient.
Neither party disputed the categorisation of the case in category B for culpability. However, the trial judge’s harm categorisation was disputed. The trial judge had not considered the victim’s psychological harm to be ‘severe’ enough for category 2, concluding that category 3 was more appropriate. The Court upheld this assessment, rejecting the submission that the victim must be regarded as particularly vulnerable. Recent category 2 cases which involved a 13-year-old victim (see R v M [2025] EWCA Crim 872) did not impose a universal or rigid principle that the 14-year old victim in this present case must be regarded as particularly vulnerable.
Crucially, the fact that R was only 18 at the time of offending was a mitigating factor in the trial judge’s decision. Aggravating factors included the victim’s age, the location and timing of the offence, and the fact that R was under the influence of alcohol and drugs. The Court held that the trial judge had sufficiently balanced these factors, having made a significant upward adjustment from a two-year starting point to two years and eight months (which was then reduced to reflect R guilty plea). The Court noted the age of R and the prospect of rehabilitation in the community as particularly relevant to this conclusion.
In reaching its decision, the Court made note of the Guideline on Sentencing Children and Young People and the Overarching Principles general guideline. The Court also cited its previous decision in R v Clarke [2018] EWCA Crim 185, in which Lord Burnett CJ had emphasized that turning 18 does not present a ‘cliff edge’ for sentencing purposes: “full maturity and all the attributes of adulthood are not magically conferred on young people on their 18th birthday.” In other words, the youth and maturity of an offender may remain relevant even after their 18th birthday.
Commentary
For youth justice practitioners, the key takeaway appears to be that having regard to an offender’s age and maturity is not strictly limited to decisions that involve children below the age of 18. The treatment of offenders aged 18-25 requires an approach that is similarly balanced and tailored to that which is used for children. The courts’ commitment to exploring alternative sentencing options before resorting to immediate custody also demonstrates the key importance of a child or young person’s realistic prospect of rehabilitation.