R v HBF

This is a renewed application for leave to appeal against sentence. The applicant is 14 years of age having been aged 13 when he committed the offences. The provisions of section 45 of the Youth Justice and Criminal Evidence Act 1999 are engaged. We order that no matter relating to the applicant may be published that could identify him including his name, address, any educational establishment or work place he has attended and any picture of him. The order lasts until he reaches the age of 18. Further, because some of these offences are sexual in nature, the provisions of the Sexual Offences (Amendment) Act 1992 apply to those offences. Under those provisions, where an allegation has been made that 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 the offence. This prohibition applies unless it is waived or lifted in accordance with section 3 of the Act.

The applicant pleaded guilty to four offences of possession of a bladed article, two sexual assaults and one attempted robbery when he appeared in the Magistrates' Court. He was committed for sentence to the Crown Court. There he was sentenced to terms of 3 years 6 months' detention under section 250 of the Sentencing Code for each of the sexual assaults and for the offence of attempted robbery. Those sentences were ordered to run concurrently with one another. No separate penalty was imposed for the offences of possession of bladed articles.

At around 11 o'clock at night on 10 July 2024, the first complainant (aged 19) left her home address in Leicester and went for a walk, on her own, around the city centre. On her way back at about midnight, she saw a young man she did not know (who was in fact the applicant) wearing black clothes, with his hood up attempting to conceal his identity. She had the sensation that he was following her and turned around to see what he wanted. It was then that she saw that he was holding a knife which he then pointed at her face. The applicant originally told the complainant that he wanted her stuff but she told him she did not have anything. He then told her aggressively that he wanted to have sex with her. He took hold of her upper arms with force, causing her to stumble backwards and fall to the floor. He continued to ask for sex while he was facing her and had the knife held close to her face. She refused. The applicant asked her how old she was. She replied that she was 15, in the hope that this would deter him but the applicant responded by saying that he was aged 9 and continued to insist on having sex. She then told him that she was on her period. Still undeterred the applicant moved behind her. Still holding the knife and with the complainant on the ground, the applicant pinned her so that she could not move. He then removed his penis from his trousers, held it in his hand, told her it was hard and then ordered her to suck it. The complainant was by now very upset and crying. She told the applicant "no" each time he requested her to suck his penis. He told her that if she screamed he would kill her. He then touched her on her leggings and rubbed her vagina and bottom over her clothing. He tried, unsuccessfully, to put his hand down her leggings so that he could touch her bare skin. The complainant tried to push the knife away but the applicant responded by placing it even closer to her face. She described the knife as being "only inches away" from her for the majority of the incident. The applicant then lifted up her coat at the back. She described the feeling of something pressing into her around the area of her waistband and then felt something warm and wet and it became apparent that the applicant had ejaculated onto her. He then ran away. The complainant's distress was heard by a witness who came forward and assisted her so that the police could be called.

The second incident occurred after 11 o'clock at night on 29 July 2024. This was the offence of attempted robbery. The second complainant (aged in her late 30s or early 40s) was walking in the Fosse Road North area of Leicester. She was returning from her work in a restaurant close to the city centre. She became aware of the applicant, who had his hood up, walking adjacent to her. She felt uncomfortable and in order to get away from him crossed over the road. She walked home. As she was unlocking her front door, she saw the applicant running towards her with a knife in his hand, pointing it towards her. She screamed. That scream caused the applicant to run away. That incident was caught on her Ring doorbell.

Two days later, on 31 July, the third complainant, a first-year university student (aged 19 or 20) was returning home from work at around 11.30 pm. She heard footsteps from behind her. She had an uneasy feeling and thought that she was being followed. She then heard a male voice (the applicant) say: "Excuse me". She was grabbed by her right wrist by him from behind. She froze and was unable to free herself from his grip. He had a knife that he pointed towards her, and he said: "If you scream I'm going to hurt you. This is not my first time. I've already been in jail. I'm not scared." The applicant then pulled down his trousers, exposed his penis and aggressively told her to touch it. She was still being held forcibly by the wrist and the applicant pulled her hand towards his penis. She could not recall whether she actually touched it because she was so traumatised. She thought the incident lasted for about 30 seconds and only came to an end when some men leaving a nearby address disturbed the applicant. He then ran away.

The next day on 1 August the applicant was seen by the police on Fosse Road North. He was found to be in possession of a black-handled kitchen knife with a 5-inch blade. He was arrested and interviewed. He accepted that he did carry a knife sometimes when he went out. He effectively then denied the other incidents.

Each of the complainants made impact statements which were presented at the sentencing hearing. The first complainant said that the incident had caused her to lose faith in everyone. She could now not leave her home, or invite anybody else into her home because of her feelings of insecurity. The second complainant said that she feels afraid of further attack on her whenever she goes out and worries about her children when they are out of the house without her. The third complainant said that she has had to see her GP with symptoms of depression. She is scared of walking at night and has had to change her work shifts to obviate the need to do so. She has nightmares and only goes out of the house after dark when she is accompanied by somebody else.

In addition to the impact statements, the judge had before him three reports on the applicant. The pre-sentence report concluded that he posed a medium risk of reoffending and could not at the time of sentence be properly managed within the community. The other reports came from a psychiatrist, Dr Reeves, and a psychologist, Dr Warner. Dr Reeves concluded that the applicant has learning difficulties and a mental age lower rather than his chronological years. She did not find any symptoms of autism, but did find symptoms suggestive of the applicant having ADHD.

The judge, in full sentencing remarks, identified the guidelines relevant to the sentencing exercise, Sentencing Children and Young People Overarching Guideline, Sentencing Children and Young People Guideline for Sexual Offences and Robbery and the Totality Guideline. In the course of his remarks he also referred to the Adult Sentencing Guidelines for the sexual offences and the attempted robbery offence committed by the applicant, and recorded that he had reread the Bench Book insofar as it related to dealing with young people in the Crown Court. He said that he was going to sentence the applicant by reference to the five-step approach set out in the Sentencing Children and Young People Guideline for Sexual Offences. Step 1 is to determine the seriousness of the offence by a reference to the nature of the offence. Step 2, to take into account the aggravating and mitigating factors. Step 3, to consider personal mitigation, and step 4, to apply appropriate reduction for guilty plea and step 5 to review the sentence which includes referring to the Adult Guidelines if the judge concludes that a custodial sentence is inevitable.

In his remarks the judge set out his conclusion that the offences, which the applicant had admitted, were so serious that only custody could be justified for them. He recorded that he had reached that conclusion notwithstanding the fact that the applicant was aged 13 at the time of offending and 14 at the time of sentence. He said that a detention and training order with its maximum term of 2 years would constitute insufficient punishment for these offences. He set out in detail the sentences he would have passed on an adult for each of these offences with reference to the appropriate Sentencing Council Definitive Guideline. He concluded that with full discount for guilty plea he would have passed a total term of 8 years 4 months. Relying on the guidance in the Definitive Guideline relating to the Sentencing of Youths, he determined that a sentence of less than half that length was appropriate in this applicant's case, given his age and other mitigating factors. He therefore passed concurrent terms of 3 years 6 months on each sexual assault and the offence of attempted robbery.

The grounds of appeal criticise the way in which the judge approached his sentencing task. It is said that although he recognised the requirement to adopt the five-stage test as set out in the guideline, he did not in fact follow that procedure. Rather it is said he sentenced the applicant as if he were a small adult and therefore passed a sentence on him which was manifestly excessive.

In oral argument today on his behalf it was submitted that the seriousness of these offences has to be balanced against both the chronological age of the applicant and his developmental immaturity and, had that properly been done, a lesser sentence than that passed would have been appropriate. In short, it is submitted on behalf of the applicant that the judge should have imposed either a non-custodial sentence or, failing that, a detention and training order of shorter duration than the sentence imposed.

We do not accept that the criticisms made of the judge's approach to sentencing the applicant are justified or resulted in the applicant receiving a manifestly excessive sentence. It is clear from the remarks of the judge that he was well aware of the approach to be taken when sentencing people of this applicant's age. It is true that the judge did not set out his conclusions as to the seriousness of the offence at the beginning of his sentencing remarks but he did indicate that he had made such a determination and set out, at a later stage, when dealing with what the adult equivalent sentences for these offences would have been, how he had reached his conclusions as to seriousness and how he had factored in the aggravating and mitigating factors relevant to the case. The aggravating features of this case were manifold and included the fact that there must have been significant planning, the applicant concealed his identity by wearing dark clothing and seeking to hide his face, the use of a weapon on each occasion and the targeting of lone women walking at night who were therefore vulnerable. It was inevitable, in our view, that he would have concluded that the gravity of the offences admitted by the applicant was such that only a custodial sentence for them could be justified. It is also clear from the judge's remarks that he considered whether, given the applicant's age, there was a possibility of imposing a non-custodial alternative. He concluded, again rightly in our view, that there was not. He applied discount for youth in line with that suggested in the Definitive Guideline. The guideline suggests that in the case of an offender aged 15 to 17, a sentence of between one-half and two-thirds of the appropriate adult sentence might be appropriate. The applicant in this case was younger and had developmental difficulties, which meant that a greater discount might be thought to be appropriate in this case. He received such a greater discount. The sentence of 3 years 6 months is approximately 40 per cent of the appropriate sentence for an adult. The judge went on to consider whether, despite his view as to the serious nature of these offences and the sentence of 3 years and 6 months, which he judged to be appropriate, there was a possibility of imposing a detention and training order instead which would have limited the overall sentence to one of 2 years. Again, correctly in our view, he concluded that a longer custodial term was required given the gravity of this offending. It is clear from the remarks made by the judge in the course of sentence that he had in his mind at all times this applicant's age and the other mitigating factors and appropriately weighted those factors against the serious aggravating features of the offending.

It is our duty to consider whether the total term in this case was manifestly excessive. We are acutely aware that custody must be regarded as the last resort when an offender is as young as this applicant and has the difficulties set out in the various reports we have read on him. Nevertheless this was the particularly serious offending, which was repeated and which has had the most serious effect on each of the victims. We have no doubt that custody was inevitable. There was no other viable alternative available in this case. The pre-sentence report confirmed that the applicant could not at the time of sentence be managed within the community. Further, the length of the sentence imposed cannot properly be described as manifestly excessive for the crimes committed. An adult offender in the applicant's position could not only have expected a sentence significantly in excess of twice that imposed on the applicant but would also have faced potentially a finding of dangerousness and in all probability an extended sentence. It follows that we refuse leave to appeal in this case.