Smith v Rex

Factual and Procedural Background

This case concerns historical sexual offences committed by the Appellant when he was a child. In November 2023, at age 37, the Appellant was tried and convicted at the Crown Court at The City on an indictment containing 12 counts of indecent assault contrary to section 14 of the Sexual Offences Act 1956. The offences occurred between the ages of 10 and 17 against two younger girls, referred to as C1 and C2. On 18 December 2023, the Appellant was sentenced to a total of 7 years imprisonment composed of various concurrent and consecutive sentences across the counts. The Appellant appeals the sentence with leave of the single judge.

Reporting restrictions under the Sexual Offences Amendment Act 1992 apply, preventing identification of the complainants. The offences involved repeated sexual abuse of C2 between 1997 and 2004 and two incidents involving C1 around 2000-2001. The Appellant initially denied all allegations during police interview. Victim personal statements and medical and neurodivergent assessment reports were considered at sentencing, noting enduring harm to the complainants and the Appellant's serious health issues and diagnosis of Autism Spectrum Disorder.

Legal Issues Presented

1. Whether the sentencing judge failed to apply the Sentencing Council Guideline on Sexual Offences – Sentencing Children and Young People by not giving appropriate deductions for the Appellant's age and personal characteristics when sentencing on Counts 1 and 2.
2. Whether the judge failed to apply the same guideline properly in reducing sentences by half on Counts 3 to 8.
3. Whether the judge erred in passing consecutive sentences without applying the principle of totality, failing to reduce sentences to reflect concurrency between Counts 1 and 2 and Counts 3 to 12.
4. Whether the judge erred by failing to apply any reduction for the Appellant's age in sentencing on Count 11.

Arguments of the Parties

The opinion does not contain a detailed account of the parties' legal arguments.

Table of Precedents Cited

Court's Reasoning and Analysis

The court began by noting the complexity of sentencing historical sexual offences committed by a child and the necessity of a consistent and careful approach. It emphasized the importance of the Ahmed decision, which requires courts to apply the Children guideline when sentencing offenders who were under 18 at the time of offending, regardless of the time elapsed.

The court found that the sentencing judge failed to properly apply these principles. The judge used adult sentencing guidelines as starting points and applied discounts for age and mitigation without adequately considering the sentencing regimes and disposals that would have been available to a child offender at the time of the offences. The judge's approach led to sentences that were plainly excessive for the offences committed when the Appellant was aged 10-14, including a 3-year sentence on Counts 1 and 2, which would not have been custodial for a child at that time.

The court analyzed the historical sentencing options available to children, noting that for offences committed when the Appellant was 10-14, custodial sentences would have been unlikely, with referral orders or Detention and Training Orders being more probable outcomes. For offences committed at age 17, custody would have been appropriate as a last resort, reflecting the serious harm and repeated nature of the offending.

Applying these principles, the court concluded that the sentences for Counts 1 to 8 should be reduced and made concurrent, reflecting the Appellant's young age and the sentencing options available at the time. The sentence on Count 11 and concurrent sentences on Counts 9, 10, and 12 were upheld, as these offences involved older age and greater culpability.

Holding and Implications

The court ALLOWED the appeal in part by quashing the sentences on Counts 1 to 8 and replacing each with a concurrent sentence of 4 months. The sentences on Counts 9, 10, and 12 remain at 2 years concurrent, and the sentence on Count 11 remains at 4 years and becomes the lead sentence for all other offences. The total effective sentence is reduced to 4 years imprisonment.

The decision directly affects the Appellant's overall sentence by reducing it from 7 years to 4 years. No new legal precedent was established beyond the reaffirmation and application of the principles in Ahmed. The court emphasized the necessity for prosecution to provide detailed historical sentencing information in future cases to assist judges in applying the correct sentencing framework for child offenders in historical cases.