The Court of Appeal considered whether a sentence of a Youth Rehabilitation Order (‘YRO’) with intensive supervision and surveillance (‘ISS’) requirements was an unduly lenient sentence for an 18 year old of good character who, at 17 had been convicted of a rape committed when he was 16.
Details
Facts
RP, who was 16 at the time of the offence (17 at the time of conviction and 18 at the time of sentence), had been with his girlfriend, aged 17 and two other friends drinking at a friend’s house. Shortly after 11pm, RP and his girlfriend went to a separate bedroom, where she fell asleep on top of the covers. An hour later, she awoke to find RP on top of her in just his boxer shorts. He proceeded to remove her shorts and underwear; he held her down and forced her legs open. She told him to stop but he continued to penetrate her with his penis for around 2-5 minutes until he ejaculated. He then went to sleep. Around 4am, RP woke up and the victim, who was also awake, told him what he had done. He claimed to have no memory of the incident.
The victim made no further mention of the incident until six weeks later, where in the presence of the same group of friends (including RP), she mentioned what had happened. RP ran off and later told the police that he had done something very bad, namely “ [I] had sex with her. She said she didn’t want to but I did it anyway.” He was charged with rape on 31st January 2025 and indicated a guilty plea at first opportunity before the Youth Court, where the case was committed for sentence.
Summary
Two PSRs as well as an addendum PSR were provided to the court ahead of sentence. the author of the PSR recommended a YRO with extended ISS, noting that RP would be admitted to the adult custodial estate if given a prison sentence, and would not have the same access to intervention and support. It was further noted that a custodial sentence would have a negative impact on RP’s psychological wellbeing, given his history of “low mood, poor confidence, social withdrawal and maladaptive coping mechanisms” [para 16]. Rehabilitation was more likely to be achieved with a community sentence.
A victim personal statement and statement from the victim’s mother were also supplied, outlining the significant impact the offending had had on her, including deferring university for a year, social isolation and enduring flashbacks.
The parties agreed that had the adult guidelines been applicable, the offence would have fallen into category 3B, with a range of 4-7.5 years custody. Had RP been an adult, a sentence in the region of 5 years would have been appropriate. Given his age, this would have been reduced to around 3 years, and his early guilty plea would have further reduced it to the region of 2 years. The judge noted that she would then have considered suspending the sentence due to the prospect of rehabilitation but was prohibited from doing so due to him being under 18 at the time of conviction.
The judge therefore went on to pass a YRO with ISS. Her 5-step approach is set out paragraphs [20] and [23-25].
The Solicitor General appealed on the basis that only an immediate custodial sentence could be justified. In so doing, the case of R v Grace was relied on, in which the Court of Appeal confirmed that while the adult guideline is not applicable when sentencing young people, it is “nevertheless legitimate to consider the length of sentence under such an adult guideline, adjusted for the offender’s youth, as of some relevance in assessing the seriousness of the offending when seeking to determine…whether only a custodial sentence can be justified.” [para 26]. The categorisation, which had been agreed by counsel at sentence, was also challenged and the Crown now placed the offending at 2B rather than 3B, emphasising the psychological impact on the victim.
The court rejected these submissions, finding that although the impact had been substantial, it did not reach the threshold of ‘severe’, and that there could be no criticism of the judge’s analysis that the offending would have attracted a sentence of around 2 years, which would have been suspendable bar the defendant’s age. The appeal was dismissed.
COMMENTARY
RP entered his guilty plea two days prior to turning 18. As such, the court was limited to youth disposals. That meant that a suspended sentence order could not be given, where it may otherwise have served the interests of justice. The imposition of a YRO with ISS in this case achieved the same aims of community rehabilitation and allowed RP to engage in interventions provided by the YJS. Had he received an immediate custodial sentence, he would have been committed to the adult custodial estate despite the offence being committed at the age of 16. The judge’s careful approach meant that he was not prejudiced by the date he entered his plea by being subject to immediate custody, as per the principles for Sentencing Children and Young People, which emphasise that custody should always be a last resort in the case of children and rehabilitation should take precedence.
- ^[2025] EWCA Crim 1047