WY, R. v

Factual and Procedural Background

This case concerns a reference brought by the Director of Public Prosecutions (DPP) under section 36 of the Criminal Justice Act 1988, asserting that the sentence imposed on the Respondent was unduly lenient. The Respondent was convicted after trial on two counts of engaging in sexual activity with a child under 16 years, contrary to section 16(1) of the Sexual Offences (Northern Ireland) Order 2008. The trial judge sentenced the Respondent to nine months' imprisonment on each count, to run concurrently, and initially activated two suspended sentences which were later administratively withdrawn as expired. A Sexual Offences Prevention Order was also imposed and not disputed.

The victim and Respondent are both Romanian nationals. The victim was between 14 and 15 years old at the time of the offences, while the Respondent was between 31 and 33 years old. The Respondent's conduct resulted in the victim becoming pregnant twice and giving birth to two children. The offences involved repeated sexual activity over a period, with the first count covering the period including the first pregnancy and the second count covering subsequent activity.

The victim was introduced to the Respondent and his brother by her aunt in Romania, under the belief that the Respondent sought a wife. The victim's mother consented to the victim traveling to Northern Ireland with the Respondent for three months. The victim initially lived with the Respondent in Romania, where the sexual relationship began shortly after the marriage arrangement. Despite expressing unhappiness to her mother and staying temporarily with her father, the victim was persuaded to return to the Respondent. They then traveled to Northern Ireland, where the victim lived in the Respondent’s family home in Belfast.

Following intervention by police and Social Services in June 2016, the victim and her daughter were removed from the Respondent’s home while the victim was pregnant with her second child. The victim initially declined an Achieving Best Evidence (ABE) interview but later gave detailed evidence. The Respondent admitted to sexual activity with the victim from the outset and continued after arrival in Northern Ireland. The Respondent had a history of 18 previous convictions, including two sexual assault offences against adult females, and was subject to sex offender registration at the time of the offences.

Aggravating factors accepted by the court included the significant age disparity, repeated penetrative sexual contact, victim isolation, pregnancies resulting from the offences, breach of suspended sentences for sexual assault, and previous sexual offence convictions. The Respondent argued mitigation based on cultural context, loss of contact with children, and delay/double jeopardy concerns. Delay in prosecution was acknowledged, with significant periods of inactivity in the case progression, partly attributable to the Covid-19 pandemic.

Legal Issues Presented

1. What is the appropriate sentencing range for offences of engaging in sexual activity with a child under 16?
2. What reduction in sentence, if any, is appropriate for mitigation, delay, and double jeopardy considerations?
3. How should the court deal with the activation of breached suspended sentences?

Arguments of the Parties

Appellant's Arguments (Director of Public Prosecutions)

• The original sentence was unduly lenient given the serious nature and aggravating factors of the offences.
• The suspended sentences breached by the Respondent should be activated.
• No personal mitigation justified the original sentence.

Respondent's Arguments

• The Respondent’s conduct should be understood in the cultural context of the Roma community, where early marriage is customary.
• The Respondent had suffered significant punishment through loss of contact with his children.
• Delay in prosecution and the principle of double jeopardy should reduce the sentence increase.
• A psychiatric report was submitted highlighting social isolation and difficulties in prison due to cultural background as mitigating factors.
• The victim’s expressed affection and current stable living situation were cited in mitigation.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
R v DM [2012] NICA 36	Sentencing guidelines for sexual offences involving minors; assessment of appropriate custodial terms.	Used as a principal authority to define sentencing range and aggravating factors, including age disparity and pregnancy.
R v Corran [2005] 2 Cr App R (S) 73	Sentencing for consensual sexual intercourse with a child aged 13; reference for sentencing increases reflecting statutory changes.	Guided the court on appropriate sentencing levels and factors such as age difference and repeated offences.
R v Barrass [2007] 2 Cr App R (S) 1	Sentencing for isolated sexual offence with a minor; consideration of plea and previous offending.	Referenced to illustrate sentencing for isolated acts and impact of guilty plea.
R v Frew [2009] 1 Cr App R (S) 17	Sentencing for sexual offences involving pregnancy; consideration of aggravating factors.	Applied to emphasize seriousness of pregnancy as an aggravating feature.
R v McCormick [2015] NICA 14	Sentencing for non-penetrative sexual activity with a minor; starting points for custodial sentences.	Provided comparative sentencing guidance for offences involving older offenders and younger victims.
R v SG [2010] NICA 32	Sentencing for repeated sexual offences against a minor with prior convictions and breach of warnings.	Used to demonstrate sentencing for repeat offending and prior sexual convictions.
R v Campbell Allen [2020] NICA 25	Victim impact and sentencing considerations regardless of victim impact statement presence.	Supported the court’s view that absence of victim impact statement does not reduce offence seriousness.
Attorney General’s Reference No 1 [1993] NI 38	Principle of double jeopardy in sentencing appeals and the conditions under which a sentence may be increased.	Considered in relation to the balance between increasing sentence for deterrence and the hardship of a second sentencing.
DPP’s Reference (No.2 of 2019) (R v KT) [2019] NICA 42	Duty to activate suspended sentences unless unjust in all circumstances.	Applied to justify activation of the Respondent’s breached suspended sentences, with concurrency ordered.

Court's Reasoning and Analysis

The court analysed the appropriate sentencing range for offences of sexual activity with a child under 16, referencing established case law to guide the starting point and factors influencing sentence severity. The court noted the maximum sentence for such offences is 14 years, but sentencing must be tailored to the facts of each case.

Aggravating factors in this case included the significant age disparity, repeated penetrative sexual activity over time, victim isolation, resulting pregnancies, breach of suspended sentences, and prior sexual offence convictions. The court rejected cultural context as a mitigating factor, emphasizing that conduct lawful or customary in another jurisdiction is not acceptable in Northern Ireland. The court also dismissed claims of personal mitigation based on the victim’s affection or the Respondent’s loss of contact with his children.

The court acknowledged the significant delay in prosecution, including a breach of the reasonable time requirement, and accepted that this warranted some reduction in sentence. However, the court balanced this against the principle of double jeopardy and the need to increase the sentence to reflect the seriousness of the offences and to deter similar conduct.

Regarding the suspended sentences, the court referred to statutory provisions and precedent emphasizing the duty to activate suspended sentences breached by the Respondent. The court decided to activate them but ordered that all sentences run concurrently to ensure totality and proportionality.

Holding and Implications

The court allowed the reference, holding that the original sentence was unduly lenient. The sentence was increased to 18 months’ imprisonment on each count, to run concurrently. The previously suspended sentences were activated and also ordered to run concurrently, resulting in a custodial term of nine months followed by nine months on licence. The Sexual Offences Prevention Order and other trial judge’s orders remain in place. The court directed the judgment be translated for the Respondent’s benefit.

This decision directly affects the Respondent by increasing the custodial sentence and activating suspended sentences. No new legal precedent was established beyond the application of existing sentencing principles and statutory duties in the context of the facts.