R v ACP

The provisions of the Sexual Offences (Amendment) Act 1992 apply to this offence. Under those provisions, where a sexual offence has been committed against a person, no matter relating to that person shall, during that person's lifetime, be included in any publication if it is likely to lead members of the public to identify that person as the victim of that offence. This prohibition applies now and is confirmed by this Court this morning.

The appellant is now 26. On 25 January 2024, in the Crown Court at Sheffield, he was convicted of a variety of serious sexual offences before HHJ Megan Rhys ("the judge") and a jury. On 18 March 2024 he was sentenced to a total of 11 years' imprisonment by the judge. He appeals against that sentence with leave of the single judge.

The victim of the appellant's offending was his stepbrother. The offending took place between August 2011 and August 2015. During that period the victim was aged between 6 and 9, whilst the appellant was aged between 12 and 16. They were both therefore children at the relevant time.

The appellant and the victim shared a bedroom. When the victim was about 6 and the appellant about 12, the appellant asked the victim to give him a back rub but then turned over and asked the victim to touch his penis. The victim then masturbated the appellant. There was a subsequent similar incident. Those offences of causing or inciting a child under 13 to engage in sexual activity comprised counts 1 and 2.

Later, when the appellant was at secondary school and the victim was still at primary school, the victim was masturbating the appellant when the appellant said he was bored and asked the victim to put his penis in his mouth. The victim put the tip of the appellant's penis in his mouth but the appellant put his hand on the back of the victim's head and moved his penis further into the victim's mouth, causing the victim to gag. That offending ended when the appellant heard his father coming up the stairs and the appellant pushed the victim away and hid him under the covers. There was a second similar incident thereafter. Those offences of rape of a child under 13 comprised counts 3 and 4.

When the complainant was 9 the appellant showed him a pornographic video and asked if the victim wanted to try some of the stuff that they had seen. The victim agreed because he thought it was normal. When they were both naked, the appellant forced his penis into the victim's anus. That caused the victim pain and he asked the appellant to stop but the appellant continued with the offending. Eventually the appellant stopped and made the victim masturbate him. That further offence of rape of a child under the age of 13 was repeated subsequently. Those offences constituted counts 5 and 6.

Count 7 was the last occasion that the appellant forced his penis into the victim's anus. By then he was 16 and the victim was 9. On one occasion during the commission of these offences, the appellant clipped the victim round the back of the head and stated that it had been the victim's fault that the offending had happened.

The victim did not tell anyone what had happened until 2020, when he mentioned the offending in a letter to his parents, and stated that he had not realised at the time how wrong the offending had been. The appellant was arrested and interviewed. He answered "no comment" to questions asked by the police before providing a prepared statement in which he denied the offending, although he did say that he and the complainant had watched adult movies together and would then copy the behaviour they had witnessed in a playful manner. The appellant maintained his denial at and throughout the trial and was convicted as we have described.

The judge had a considerable amount of material for the purposes of the sentencing exercise following the appellant's conviction. This included a pre-sentence report, an intermediary report dated 6 April 2023, two psychiatric reports dated 14 April and 26 June 2023 and a joint experts' report dated 12 January 2024. Much of that material had been generated by the possibility that the appellant was unfit to plead. The psychiatric expert witnesses agreed that the appellant was fit to plead although he suffered from depression and anxiety. One expert saw evidence for ASD, the other did not.

The judge was properly aware of the difficulties of sentencing an adult for offences committed when that adult was a child. She was referred to the lead case in this area, namely R v Ahmed [2023] EWCA Crim 281, and the Sentencing Council's Overarching Principles Guideline Sentencing Children and Young People, commonly called "The Children Guideline".

It was agreed by reference to the Sexual Offences Guidelines that each of these offences fell into category 3A. The judge said that that meant that in respect of counts 1 and 2, there was a starting point of 5 years' imprisonment with a range of 3 to 8 years for a single offence. In respect of counts 3 and 7 inclusive for a single offence (the rape of a child under 13) there was a starting point of 10 years' imprisonment and a range of 8 to 13 years.

The judge then said this:

The judge said that on counts 1 and 2, if she had been sentencing the appellant as an adult, the appropriate sentence would have been one of 4 years' imprisonment but because he was a child at the time of the offending she would discount that by two-thirds to a term of 16 months on each count. In respect of counts 3 and 4 (the oral rapes) she would have imposed a term of 9 years' imprisonment but because these offences took place when the appellant was around 15, she would have discounted that by 50 per cent to arrive at a term of 4½ years' imprisonment on each count. In relation to counts 5 and 6, when the appellant was 15 or 16, and count 7, when the appellant was 16, she would have made a discount of one-third and so reduced the starting point of 10 years for each offence to one of 6 years and 8 months.

The judge then had regard to the principle of totality. She took count 7 as the most serious offence, given the appellant's age at the time of that offence. She said that she would treat that as the lead offence with the other offences being treated as aggravating factors. She concluded that the least sentence she could pass commensurate with the seriousness of all the offences was one of 11 years' imprisonment on count 7. The other sentences, those that we have already set out in this judgment, were all made concurrent.

On behalf of the appellant, Mr Batchelor's written advice and grounds of appeal submit that the judge gave insufficient reduction to reflect: i) the appellant's age at the time of his offending; ii) the available information and particularly the reports, iii) his vulnerabilities; and iv) the principles identified in R v Ahmed and R v ZA [2023] EWCA Crim 596. It might fairly be said that those criticisms are vague and, in many respects, manifestly unfair to the judge. The problem with his approach has perhaps been compounded by the fact that Mr Batchelor criticised the judge's starting point of 16 years which is in fact a notional term which does not appear anywhere in the judge's sentencing remarks.

Following the grant of permission to appeal, we have had the advantage of a further psychologist’s report prepared by Dr Foster. The report is very long. We have read it, and we consider that Dr Foster's summary of his conclusions is an accurate summary. For those reasons therefore we shall simply set out in the judgment the two paragraphs headed "Summary of Conclusions”:

This was a difficult sentencing exercise. We consider that the judge approached it with care and proper attention to detail. She was right to calculate individual sentences for each offence in the way that she did. Accordingly, we do not think that any criticism can be made of those individual sentences. She was also right to have regard to the principle of totality and to conclude that count 7 was the most serious offence because the appellant was 16 by then. As we have indicated, most of the criticisms made by Mr Batchelor are unjustified.

In our view, the only step taken by the judge that is open to proper criticism is the last one, namely the fixing of the term of 11 years on count 7 to reflect the appellant's criminality as a whole. The calculation of that 11 year term was not explained.

In our view, what the judge should have done was to state the overall term she would have imposed on the appellant had he been an adult, and then state the term that she was imposing having regard to his age at the time of the offences and his particular vulnerabilities. Had she taken that approach, we think that the judge would have imposed an overall term of 9 years' imprisonment. There are two alternative routes to that same outcome.

First, if the appellant had been tried and convicted for these offences shortly after the last offence had been committed, he would have been 17 or 18. A judge at such a trial would have considered the period over which the offending had occurred, the escalating seriousness of the offending and would have had regard to totality. We think that, in that situation, the judge would have arrived at a custodial term for the offending as a whole of around 16 years. The judge would then have made significant reductions to reflect both the appellant's vulnerabilities and in particular his age at the time of the offending. In our view, that would have reduced the term imposed to one around 9 years' imprisonment.

The same result is, we think, produced by taking the detailed steps identified in the guidance at [24] to [30] of Ahmed (we should add that we do not consider that ZA adds anything). The sentencing judge must have regard to not only the Children Guideline, but as expressly identified in R v Ahmed, the Guideline on Sentencing Children and Young People for Sexual Offences. That Guideline sets out the approach in five steps.

Step 1 involves assessing 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". It is plain therefore that this case passes that test. So we note that Mr Batchelor's submission to the judge that she should not pass a sentence of immediate custody was, if we may say so, hopelessly unrealistic. It does not help a sentencing judge when counsel for the defendant does not engage with reality at the hearing.

Step 2 involves considering the aggravating factors. Here of course the principal aggravating factor was the sheer number of serious offences and the length of time during which the offending took place. There was some planning and there was plainly grooming. There was also significant disparity of age. When the offending started the appellant was twice the age of the complainant. At the end of the offending (count 7) the appellant was 16 but the complainant only 9.

Pausing there, it seems to us that, prior to any consideration of personal mitigation, a term of around 11 or 12 years would have been justified. However, there is then the important personal mitigation (Step 3). Taking into account his disabilities as set out in the most recent report from Dr Foster, these would have reduced the term to one of around 9 years imprisonment. Step 4 is the reduction for a guilty plea which does not apply here but which can have a significant effect on the type of sentence imposed in these cases.

Step 5 is the review of the sentence. That is standing back and considering all the circumstances, in particular the age of the defendant at the time of the offending. Where custody is unavoidable, as here, the guideline expressly says that the court may want to consider the equivalent adult guideline in order to determine the appropriate length of the sentence. Indeed it states when considering the adult guideline:

When calculating individual sentence, we consider that the judge followed that guideline closely. She applied a reduction of one-third for counts 5, 6 and 7 and a greater reduction for the earlier counts when the appellant was younger. But we think her final sentence of 11 years did not follow that same course. For the reasons that we have given, we consider that the right term on count 7 to reflect the appellant's overall criminality was one of 9 years' imprisonment.

Accordingly, we consider that, notwithstanding the evident care with which the judge approached this sentencing exercise, the term of 11 years imposed on count 7 was manifestly excessive. We would quash that term on count 7 and replace it with a term of 9 years. All the other concurrent sentences remain as they were. To that extent only, this appeal against sentence is allowed.