ACN, R v

MR JUSTICE EDIS: ACN is now 18 years old.

The provisions of the Sexual Offences (Amendment) Act 1992 apply in this case and no matter relating to the victim shall during his lifetime be included in any publication if it is likely to lead members of the public to identify him as a victim of an offence.

This is a renewed application for leave to appeal against sentence after refusal by the single judge.

The applicant was convicted after a trial and on 31 October 2017 sentenced in respect of the following offences. There were four convictions for offences of rape and two convictions for sexual assault. In each case the indictment averred and it was proved that the victim was a child under the age of 13. Three of the offences of rape were penetration of the mouth of the victim by the applicant's penis and the fourth was an offence of anal rape.

The judge dealt with the matter by imposing concurrent sentences of 6 years' detention under section 91 of the Powers of Criminal Courts (Sentencing) Act 2000 in respect of each of the four counts of rape concurrently with each other and in respect of the allegations of sexual assault sentences of one and a half years concurrently were also passed under section 91, making a total term of detention of 6 years.

It is unnecessary to set out the facts of the conduct which led to these convictions. They are fully set out in the Criminal Appeal Office Summary, which has been provided to the applicant. It is only necessary to say that the applicant and the complainant were half-brothers who shared a bedroom, they had the same mother but different fathers and the offending took place over a lengthy period of time while the victim was aged 7 and the applicant was 15 or perhaps 16 years old.

The applicant was of previous good character and was able to supply character references to the court and there was in addition a pre-sentence report which identified various hardships which he had undergone in his past and identified also some promise for his future.

The judge in careful sentencing remarks observed that both counsel agreed that the appropriate category in respect of this offence was category 2B of the relevant guideline, which afforded a starting point of 10 years' custody and a range of 8 to 13 years. He said that the starting point required an increase to 12 years because of the quantity of offending, the convictions for other offences being treated as an aggravating feature of the substantive sentence on the principal offences.

Having arrived at a sentence before plea discount by that process of 12 years in the case of an adult, the judge then discounted, applying the relevant guideline for children and young people, by 50% to derive the final sentence of 6 years. In doing so, the judge carefully set out in full the aggravating and mitigating features which arise in this case.

There are three grounds of appeal for which leave is sought. It is submitted that the sentence was manifestly excessive and the starting point too high. Secondly, it is submitted that the section 91 sentence was unnecessary and failed to take into account the appropriate guideline for sentencing children and young people. Thirdly and finally, it is submitted that the sentence could be seen to be longer than that imposed in the case of an older offender or older young offender.

The single judge in refusing leave to argue any of those grounds gave her reasons in full and they have been supplied in writing to the applicant. It is, we think, unnecessary for us to set those out in full. In essence, the single judge said that the judge had carefully balanced all relevant factors and had applied both relevant guidelines, that is to say the sexual offences guideline and the guideline on sentencing children and young people. The single judge said that the reasoning of the judge, which we have already described, was entirely in line with those guidelines and concluded that the sentence is not manifestly excessive.

We agree. The judge applied the guidelines. It is not necessary to say more than the single judge said about that. However, we do wish to say something about the third ground of appeal, which is that the sentence could be seen to be longer than that imposed in the case of an older offender.

This is at first blush a puzzling submission. The judge had halved the sentence which would be imposed on an adult in accordance with the relevant guidelines. Where, then, does it come from? It comes from a decision of the Court of Appeal in R v Burrowes 7 Cr App R (S) 106, a decision under the Children and Young Persons Act 1933, section 53(2), which is long since repealed. That decision itself is a case dating back to 1985 under a different sentencing regime altogether. It is cited as authority for the proposition that a sentence of detention under section 91 of the Powers of Criminal Courts (Sentencing) Act 2000 should not be longer than the term of imprisonment which would be imposed on an adult.

Two observations are appropriate. First, authority for this obvious proposition is not required. There is now, in any event, a guideline which courts are required to follow. Secondly, the decision is not in any event authority for that proposition. The regime under section 53 of the 1933 Act allowed the Secretary of State, in effect, to authorise the release of a young person at any time during the sentence and so offered the opportunity to supervise a troubled young person very closely throughout the term. This may have tempted some judges to impose longer terms than were proportionate to allow that extended control or supervision. Burrowes said that this should not be done.

Section 91 detention is quite different from detention under section 53 of the 1933 Act in that it is subject to the same early release provisions as a determinate sentence of imprisonment, namely release under licence at the halfway point. For this reason, the decision in Burrowes, correct as it was under the long-vanished regime under which it was decided, should now be consigned to history and should not be cited.

This application is refused.