LORD JUSTICE SINGH:
Introduction
On count 1, which was an offence of rape, contrary to section 1(1) of the Sexual Offences Act 2003 , there was a sentence of 4 years and 3 months' imprisonment.
On count 3, an offence of sexual activity with a child, contrary to section 9(1) of the 2003 Act , there was a sentence of 3 years' imprisonment made concurrent.
On count 4, which was a count alleging another offence under section 9(1) , there was a sentence of 2 years and 6 months' imprisonment again made concurrent.
On count 5, an offence of sexual communication with a child, contrary to section 15 A(1) and (3) of the 2003 Act , there was a sentence of 6 months' imprisonment again made concurrent. Accordingly the total sentence passed was 4 years and 3 months' imprisonment. A statutory surcharge order was imposed. A sexual harm prevention order was made for 10 years. There was an order for forfeiture of a telephone to be seized. Count 2, which was a charge of assault by penetration and count 6, an offence of making an indecent photograph of a child were ordered to lie on the file in the usual terms. Since he had been convicted of an offence listed in Schedule 3 to the 2003 Act the offender was required to comply with the notification provisions in Part 2 of the Act for an indefinite period. Since he had been convicted of an offence specified in the schedule to the Safeguarding Vulnerable Groups Act 2006 (Prescribed Criteria and Miscellaneous Provisions) Regulations 2009, the offender will or may be included in the relevant list by the Disclosure and Barring Service.
The facts
The facts are not in dispute for present purposes and may be taken from the Final Reference submitted on behalf of the Solicitor General. In summary, the offender when aged almost 20 began a relationship with "JB", a 14-year-old girl whom he had met through social media. In early 2021 the relationship became sexual when he had turned 20 but she was still 14. He lied to his parents telling them that she was 16. She was permitted to stay over at his house and he at hers. They had regular consensual sex over the course of 1 year. He would also send her unsolicited photographs of his penis and would photograph her when she was getting changed or was naked, without her permission.
In April 2021, the offender held a party at his house at which he became drunk. After he and JB went to bed together, he told her he wanted sex and, when she refused and despite her resistance, he raped her saying he "wanted to put a baby inside her". The details of the facts are set out in more detail at paragraphs 10 to 23 of the Final Reference.
The sentencing framework
The maximum sentence for the offence of rape is life imprisonment. The Sentencing Council has issued a Definitive Guideline on Offences of Rape. Categorisation must take place under that guideline by reference both to harm and culpability. If a defence falls within category 2B, the starting point recommended is 8 years' custody with a category range of 7 to 9 years. By way of comparison, we note that if an offence falls within category 3B the starting point recommended is 5 years' custody with a range of 4 to 7 years.
The sentencing process
The offender had no previous convictions. The sentencing court had, as this Court has, before it two victim personal statements in which JB described the impact of the rape on her. She had suffered with anxiety and depression, had suicidal thoughts and feelings of worthlessness. She began to self-harm. She had been admitted to hospital. She dropped out of school and her social life suffered drastically. In her second statement, made a year after her first, she said that all the people of her age knew her as "that girl". She was not making friends with anyone from school as they always seemed to bring this up. She worries about making other friends or talking to people and she does not want them to know. She says that she has no friends and has lost the friends she did have.
The sentencing court, like this Court, also had a pre-sentence report in which the following observations were made. The offender's presentation was that of a much younger man; he presented as extremely immature. There are concerns that he does not fully comprehend the consequences of seriousness of the current matters. The offender admitted that whilst he knows there is an age of consent, he does not understand why this is in place. He denied any sexual interest in children but the author of the report said the index offences clearly demonstrate otherwise. The offender was assessed to pose a high risk of serious harm to JB, on the basis that any further encounter with her would likely serve to retraumatise her. The offender was also assessed to pose a high risk of serious harm to children should he develop any form of intimate relationship with a child in the future and also a high risk of serious harm to the public, specifically female adults who may enter into a relationship with him. The report said he poses a risk of sexual harm again ranging from sexual assault to the possibility of rape.
At the sentencing hearing the court was assisted by written submissions on sentencing from the prosecution. There were character references on behalf of the offender and letters from his parents, and medical information was provided showing that the offender suffers from colitis. In respect of the count of rape, the prosecution submitted that the offence fell into category 2B. It was argued that the victim had suffered severe psychological harm and/or she had been particularly vulnerable due to her personal circumstances. The defence invited the judge to place the harm into category 3 for the offence of rape.
As for the offences of sexual activity with a child, the prosecution submitted that these fell into category 1A, category 1 harm because there was penetration of the vagina and category A culpability on the basis of grooming behaviour and/or sexual images of the victim being recorded and/or significant disparity in age.
In his sentencing remarks the judge said that there had been an element of grooming in this case; the offender had lavished his victim with money and gifts. The judge was driven to find that the offending had had a profoundly damaging consequence on the victim. He found that the harm caused did amount to severe psychological harm but with contribution from factors which were not attributable to this offending. Turning to the guideline, the judge placed the case into category harm 2 and culpability category B. There was the aggravating feature of the location. The victim was a guest in the offender's parents' house on the occasion of the rape and she should have been safe there. He was under the influence of both drink and drugs and it was an aggravating factor, the judge said, that the offender had used words that he wanted to "put a baby in her", in other words, to make this 14-year-old girl pregnant.
The judge also noted that there was a letter before the court suggesting that although he had moderate learning difficulties at school, the difficulties with understanding and judgment may have contributed to the situation the offender now found himself in.
On the basis of all the material that the judge had before him, he concluded that it ought to be a very significant reduction indeed compared to an adult with maturity. The judge then turned to the guideline in relation to counts 3 and 4. This was harm category 1 and culpability category A. The judge concluded that there was a significant disparity in age. There was also the fact that sexual images were recorded and/or solicited, in other words requested by the offender.
Submissions on behalf of the Solicitor General
On behalf of the Solicitor General, Mr Emlyn Jones KC takes no issue with the credit which was given for the guilty plea in this case which was 15 per cent. He also accepts that the judge was correct to impose the lead sentence on count 1, that is the offence of rape, and make the other sentences run concurrently. He accepts that the judge was correct to find that the rape fell into category 2B by reference to the Definitive Guideline on rape with, as we have mentioned, a recommended starting point of 8 years' custody and a range of 7 to 9 years.
However, Mr Emlyn Jones submits that there were two factors placing the offending into category 2 harm, severe psychological harm and the victim's particular vulnerability due to her personal circumstances, chiefly but not exclusively her age, that is 14. He submits that her previous vulnerability, contrary to what the respondent may submit, is not a mitigating factor. To the contrary, an offender must take his victim as he finds her. He also submits that there were other aggravating factors: the location of the offence and the fact that the offender acted under the influence of alcohol and drugs. Further, he had expressed his intention to impregnate his victim although it is not known whether he did ejaculate. Mr Emlyn Jones therefore submits that the seriousness of the offence and its aggravating features called for an upward adjustment from the 8-year starting point before considering mitigation. A notional sentence of 7 years was in itself simply too low.
He further submits that the downward adjustment for mitigation was too great. It is accepted that the offender's youth and immaturity does afford significant mitigation but Mr Emlyn Jones submits the reduction of almost half from 7 years, which itself was too low, to 4 years, was too great a reduction. He observes that 4 years is below the lower end of the applicable category in the Definitive Guideline for a Category 2B offence, which is 7 to 9 years' custody. He observes that in fact 4 years is at the very bottom of the category range if an offence falls within category 3B.
He submits that it was then necessary to increase the sentence on count 1 to reflect the overall gravity of the offending. Counts 3 and 4 were multiple incident counts representing an entire year of repeated, frequent, penetrative sexual activity with a vulnerable child. The offending falls into category 1A by reference to the relevant guideline, so even a single offence of that kind would have attracted a starting point of 5 years' custody. Given that these two counts represented repeated offending and given the aggravating features it is submitted the offending called for an upward adjustment from the starting point before considering mitigation.
Submissions on behalf of the respondent
On behalf of the respondent, we received written submissions from Mr Davidson and have heard oral submissions from Mr Majid, to whom we are grateful for attending at short notice in the light of the unavailability of Mr Davidson. Mr Majid submits that the sentence in this case was not unduly lenient, it was a considered and fair sentence. It reflected adequately the offending in a balanced way. It is submitted that the judge in fact took a high starting point for the offence of rape. Mr Majid submits that the exercise is not one of simply ticking boxes by reference to various culpability factors in the guideline. He invites our attention particularly to the sentencing remarks at pages 14 to 15. He submits that it is arguable that the harm in this case could have been placed in category 3.
It is also submitted that the victim had a very troubled past even before meeting this respondent. Her age of 14 does not, he submits, in itself necessarily mean that she was particularly vulnerable by reason of age alone. Her parents were in the house at the time. He accepts that the victim was vulnerable to an extent but he submits not "particularly vulnerable".
It is accepted that the judge then made a significant mitigation for mitigation and made a small increase on count 1 to reflect the totality of the offending because other counts had to be taken into account. He submits that the judge correctly focused on the defendant's own significant immaturity. He had been assessed in the pre-sentence report as being immature. Further he had positive good character references. Mr Majid reminds this Court that reaching the age of 18 is, on the authority of this Court not to be regarded as a "cliff edge" for the purposes of sentencing.
Our assessment
The principles which govern an application under section 36 of the 1988 Act are well established and were summarised by this Court, for example, in Attorney-General's Reference (Egan) [2022] EWCA Crim 1751 ; [2023] 2 Cr App R(S) 16 at [3-6] by reference to the earlier decisions of this Court in Attorney-General's Reference No 4 of 1989 (1990) 90 Cr App R(S) 366, in which the judgment was given by Lord Lane CJ, and Attorney-General's Reference No 132 of 2001 (Bryn Dorian Johnson) [2002] EWCA Crim 1418 ; [2003] 1 Cr App R(S) 41, in which the judgment was given by Potter LJ.
"... the allaying of widespread concern at what may appear to be an unduly lenient sentence, and the preservation of public confidence in cases where a judge appears to have departed to a substantial extent from the norms of sentencing generally applied by the courts in cases of a particular type."
The judge at first instance is particularly well placed to assess the weight to be given to competing factors in considering sentence.
A sentence is only unduly lenient where it falls outside the range of sentences which the judge at first instance might reasonably consider appropriate.
Leave to refer a sentence should only be granted by this Court in exceptional circumstances and not in borderline cases.
Section 36 of the 1988 Act is designed to deal with cases where judges have fallen into gross error..."
That phrase "gross error" had been used by Potter LJ in Johnson.
Turning to the application of those principles in this case, in essence, we accept the submissions which have been made on behalf of the Solicitor General and have reached the conclusion that these sentences were unduly lenient. It was proper to make the rape offence the lead count and make the other sentences concurrent so long as the total sentence was just and proportionate and reflected the overall gravity of the offending as a whole.
Taking the offence of rape, the starting point for a mature adult would have been 8 years' custody according to the Definitive Guideline. But, in the circumstances of this case, in our judgment, this had to be increased to a notional sentence of 9 years because of the aggravating factors, especially grooming. For the other offences the notional sentence after trial for a mature adult should have been 6 years in view of the aggravating features and the fact that there was multiple offending. That is again above the starting point recommended in the guideline.
Conclusion
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