Factual and Procedural Background
On 22 February 2024, in the Crown Court at Isleworth, the Appellant, aged 44 at the time of trial, was convicted of two counts of indecent assault contrary to section 14(1) of the Sexual Offences Act 1956. The offences related to acts committed when the Appellant was 17 years old and the complainant, referred to as C1, was approximately seven years old. The offending occurred between 1 September 1996 and 30 April 1997. The Appellant was sentenced on 22 March 2024 to a total of eight years and six months' imprisonment. The Appellant appealed against the sentence with leave of the single judge.
C1 had moved to England from Germany in 1995 with her family and lived initially with an aunt in east London. The Appellant's family lived in Twickenham, west London, and were part of C1's extended family, with C1 and her sisters referring to the Appellant as "uncle" though he was not their actual uncle. The children attended a primary school in Twickenham near the Appellant’s family home and would spend time at the Appellant's home after school.
The offending involved the Appellant calling C1 into his locked bedroom on at least three occasions when she was about seven years old, under the pretence of receiving treats, and performing oral penetration. C1 disclosed the abuse to her sisters in January 2019, which led to a police investigation and the Appellant’s arrest. The Appellant denied the offences at interview and trial.
Legal Issues Presented
- Whether the sentencing judge erred in categorising the offending under the adult Sentencing Council Guidelines, specifically whether the offending fell within Category 3B or a higher category.
- Whether the judge failed to properly apply the principles established in the case of Ahmed [2023] EWCA Crim 281 regarding sentencing of historical offences committed by a child.
- Whether the judge failed to adequately consider totality and the mitigation related to the Appellant’s positive character during adulthood.
Arguments of the Parties
Appellant's Arguments
- The offending fell squarely within Category 3B of the equivalent adult guideline rather than a higher category as found by the judge.
- The facts did not justify the judge's finding that C1 had been deliberately isolated.
- The judge failed to sufficiently consider the principle of totality in sentencing.
- The judge gave insufficient weight to the mitigation arising from the Appellant’s good character during his adult life.
Prosecution's Arguments
- The offending, if committed by an adult, would fall into Category 2A of the Sentencing Council Guideline due to the complainant’s vulnerability and breach of trust and grooming.
Table of Precedents Cited
| Precedent |
Rule or Principle Cited For |
Application by the Court |
| Ahmed [2023] EWCA Crim 281 |
Principles for sentencing historical offences committed by a child, emphasizing the distinct approach required for child offenders and the application of the Children guideline regardless of elapsed time. |
The court applied Ahmed to clarify that sentencing must reflect the offender’s age at the time of the offence, requiring a different approach than for adult offenders and rejecting distinctions based on elapsed time since offending. |
| Attorney General's Reference No 32 of 2016 |
Definition and implications of deliberate isolation as an aggravating factor in sexual offences sentencing guidelines. |
The court accepted the judge’s finding that locking the bedroom door constituted deliberate isolation, affecting the categorisation of the offending under the adult guideline. |
| Forbes (no full citation provided) |
Considerations regarding breach of trust in sexual offences sentencing. |
The judge considered submissions based on Forbes but found no element of breach of trust in this case. |
Court's Reasoning and Analysis
The court began by reaffirming the principles established in Ahmed, emphasizing that offenders under 18 at the time of offending must be sentenced with regard to their youth, regardless of the time elapsed before sentencing. The court rejected the distinction that elapsed time increases culpability, holding that the age at offending remains the critical factor.
The judge had correctly treated the Appellant as a 17-year-old at sentencing but did not clearly apply the relevant Children guideline steps. The court noted that the judge did not have a pre-sentence report but agreed none was necessary given the trial evidence.
The court found that the relevant statutory maximum sentence for the offence at the time was 10 years detention for a 17-year-old, with custody being a last resort and welfare considerations paramount. The court highlighted that none of the factors mandating custody under the current Children guideline (such as coercion, violence, prolonged detention, or severe harm) applied here.
Regarding categorisation under the adult guidelines, the judge declined to find severe harm or particular vulnerability but found deliberate isolation due to the locked door. The court agreed with this finding and concluded the offending fell within Category 3A (starting point 10 years, range 8-13 years) rather than Category 3B as argued by the Appellant.
The court took into account the statutory maximum sentence applicable to the offences under the 1956 Act and the Appellant's mitigation, including his positive character and lack of further offending into adulthood. The court concluded that the appropriate adult sentence would be 11 years before mitigation, which when reduced for mitigation and youth equated to a sentence of five years and four months.
Holding and Implications
The court ALLOWED THE APPEAL, quashing the original concurrent sentences of eight years and six months and substituting concurrent sentences of five years and four months on each count. All other orders remained unchanged.
The decision directly affects the Appellant by reducing his custodial sentence to reflect proper application of sentencing principles for offences committed as a child. No new precedent was established beyond the reaffirmation and application of existing principles from Ahmed and related authorities.