Mooney, R v

MR JUSTICE OUSELEY: The appellant, Mr Mooney, pleaded guilty to two counts of rape of a child under 13 and was sentenced by His Honour Judge Salomonsen to 30 months' detention on each count concurrent pursuant to the powers in section 91 of the Powers of Criminal Courts (Sentencing) Act 2000. Mr Mooney was 17 at the time of the two offences.

The facts are very important. On the weekend of 18th July 2009 the complainant (aged 12) and some of her girlfriends went out dressed up for the evening in shorts, pumps, make up and they did their hair and so on. One of the complainant's friend's brothers provided the five of them with vodka and cider, which they drank on the bus. The complainant became drunk. They all went back to a friend's house but were asked to leave in the early hours of the morning because they were making too much noise.

The appellant, who was a cousin of the friend whose house the girls had been asked to leave, came round to visit his cousin or friends there. He became aware that the girls were proposing, in the early hours of a rainy morning, to walk some miles back to their address. He said that they could come and stay at his aunt's house, not far away and the three girls went there with him. There is no suggestion that this was other than an act of kindness on his part and was not an offer made with a view to any sexual behaviour. At the aunt's house the appellant went upstairs to bed. He showed the girls where they could sleep in another room.

At some point during the course of the night the complainant joined him on the bed, both fully clothed. After some hours of chat, she initiated sex with him. The sexual intercourse and all the sexual activity was entirely consensual. Although the sex was unprotected, his basis of plea was that there was no ejaculation. She had told him, and it is not in dispute, that she was nearly 15, and he believed her.

The group of girls stayed the next day in the house drinking and smoking cannabis and that next night much the same happened again. She wanted to have sexual intercourse with him and initiated it. Again, it was unprotected but there was no ejaculation.

By the next morning however the complainant's parents had discovered her whereabouts and had come to get her. She told her mother what had happened because she was concerned that she might get pregnant. The police were called and the appellant admitted straightaway that sexual intercourse had taken place.

His basis of plea was that he had not invited the girls to stay with the intention of sexual activity taking place, but as an act of kindness; the complainant had initiated sexual intercourse on both occasions; she had said she was nearly 15; the appellant was not responsible for her being drunk; he did not ejaculate during sex and he was unaware of the law regarding consensual intercourse between a 17 year old and a 14 year old, as he believed her to be.

It appears that originally the police had been contemplating a warning but this was not the eventual outcome because he had a conviction for a minor commercial robbery.

There was no issue but that the sexual intercourse had been entirely consensual and there had been none of the planning or opportunism, or taking advantage of a young girl as so happens. The girls had been invited to stay so they did not have to walk home some miles at night in the rain. The appellant did not get them drunk. The complainant initiated the sex, after some time had passed since she had last consumed alcohol and there was no ejaculation. It was agreed she lied about her age. She did not want him to get into trouble. Her mother thought that some form of warning or perhaps a suspended sentence was all that was necessary, and considered that a rape charge (inevitable because of the age of the girl) was perhaps harsh because of the long-term effect it would have.

The appellant now recognised the inappropriateness of what he had done, accepted full responsibility, expressed remorse, although he had not thought then that it was wrong for a 17 year old to have sex with a 14 year old.

The pre-sentence report described him as "emotionally immature and distressed by what had happened". The report contemplated a suspended sentence order with supervision.

The sentencing judge decided to treat the two offences as in effect one incident. He noted that the Sentencing Guideline Council's guidelines for an adult would be 10 years as a starting point, after a trial, with a range of eight to 13 years but thought it right radically to depart from those guidelines, passing a sentence of 30 months, as we have said. It was conceded that a custodial sentence was appropriate.

However, the grounds of appeal contend that the factual circumstances of this case permitted a yet more radical departure from the guidelines than His Honour Judge Salomonsen had seen fit to make. We have already dealt with those factors but they include youth, the absence of previous custodial sentence, remorse, immediate admissions, the basis of plea, the absence of any predatory or grooming conduct and importantly the attitude taken by both the complainant and by the complainant's family. This was a matter opened by the Crown rather than asserted by the appellant to the sentencing judge.

In our judgment, although consent is irrelevant to the offence itself, it is relevant to mitigation. But it is important to remember that the primary purpose of this offence is the protection of very young girls. However immature girls may dress, or wish to behave, their protection from themselves and others who may take advantage of them is at the core at the statutory provision. The ages and the disparity between them are relevant, both what they actually are, which is a difference between 17 and 12, and what they were believed to be, a difference between 17 and 14, which would still have been an offence.

That said, this is not a case that fits readily within the guidelines in relation to rape at all, given that the essence of the offence of rape is the absence of consent, and here, without predatory behaviour or grooming, there undoubtedly was consent. No drink was plied to the complainant; no advantage was taken of her in difficult circumstances, by any behaviour of the appellant. The girl was only in the house at all as a result of kindness and indirect friendship.

The Guidelines' premise is that harm has been done to the complainant of a significant nature. Here, in the light of what both the complainant and her family have said and in the light of all the circumstances, it cannot be said that there is any harm, beyond inherent in that which is the fact that she willingly had sexual intercourse below the age of consent.

It is our judgment that the exceptional circumstances of this case, which include both the actual circumstances of the offence which we have dwelt on, and the attitude of the mother or parents of the complainant, mean that a more radical departure from the Guidelines was called for. Indeed, it may be thought that the Guidelines really offer no practical assistance in a case of this sort. The judge, himself, must have recognised that, making the radical departure that he did. It is difficult to see that one can gain a great deal of guidance from those Guidelines, if such a radical departure is called for, as obviously it was.

This was a case, in our judgment, where a custodial sentence could not be regarded as wrong in principle, notwithstanding what the pre-sentence report said. However, it is our judgment that the sentence passed was considerably too long and that, as Mr Barnes has submitted, a 12-month detention and training order would amply meet the offending behaviour, and recognise the purpose for which this legislation has been passed. We also remember that there will be continue to be the stigma for life or until rehabilitated of a conviction of rape, and 10 years on the sex offender's register.

However, for all these reasons this appeal is allowed, the sentence is quashed and we substitute for it a sentence of 12 months' detention and training.

MR BARNES: My Lord, the registration period is 10 years.

MR JUSTICE OUSELEY: He is 18 now.

MR BARNES: Yes.

MR JUSTICE OUSELEY: That does not detract from the force of what I am saying but I will correct it on the transcript. Thank you.