Factual and Procedural Background
The Appellant pleaded guilty on 7 February 2025 in The Court to an offence of rape of a child under 13 contrary to s.5(1) of the Sexual Offences Act 2003. Four related counts were ordered to lie on the file. The Appellant was sentenced on 2 October 2025 and at a subsequent slip rule hearing on 29 October 2025 to a special custodial sentence of detention for an offender of particular concern of 3 years and 4 months' detention in a Young Offender Institution with an extended licence period of 1 year. A Sexual Harm Prevention Order was made. The Appellant was aged 19 at the date of the offence, plea and sentence. The Appellant appealed the custodial sentence with leave and with an extension of time.
On the facts as accepted below, the victim was 12 years old. The Appellant communicated with the victim over social media for about three weeks prior to the offence, met the victim on the day of the offence during an outing to a leisure venue, and engaged in sexual activity which included recorded sexual images. The Appellant maintained that he genuinely and reasonably believed the victim was 17 years old; that belief was accepted by the prosecution and formed part of the basis of plea. The Appellant has diagnoses including attention deficit hyperactivity disorder, depression and complex mental health issues, probable borderline or mild learning disability, a history of self-harm, a background in foster care, and received supported living and care-home support.
Legal Issues Presented
- Whether the custodial sentence of 3 years and 4 months was manifestly excessive in all the circumstances.
- Whether the Sentencing Council's Definitive Guideline for rape of a child under 13 (and its starting points and category ranges) was appropriate to apply in this case or whether the case was exceptional such that it would be contrary to the interests of justice to follow the Guideline.
- How the Appellant's genuine and reasonable belief as to the victim's age, his immaturity and vulnerabilities, and the factual finding that the victim instigated sexual activity affect culpability, harm categorisation and the overall sentence to be substituted on appeal.
Arguments of the Parties
Appellant's Arguments
- The sentence was manifestly excessive given that the prosecution accepted the Appellant genuinely believed the victim was over 16.
- The victim had represented herself as 17 to others and to the Appellant's care-home manager, supporting the reasonableness of the Appellant's belief.
- The Appellant's immaturity, ADHD and probable learning difficulty constituted significant mitigation.
- The victim instigated and sexualised the relationship and activity; there was no coercion or exploitative conduct by the Appellant.
- These factors together rendered the case exceptional such that the Guideline should not have been applied in the usual way.
Respondent's Arguments
- The sentence was not manifestly excessive; the sentencing judge properly applied the Guideline and considered the circumstances in which strict application may not be appropriate.
- The judge adopted a thorough and structured approach, gave significant weight to mitigation and reduced the notional sentence and the plea discount appropriately.
- The sentence balanced protection of children, deterrence and the Appellant's mitigation; the offending had opportunistic elements making it more serious.
Table of Precedents Cited
| Precedent |
Rule or Principle Cited For |
Application by the Court |
| Attorney General's reference (Nos 11 and 12 of 2012) [2012] EWCA Crim 119 [2013] 1 Cr App R (S) 43 ('AG Ref 11 and 12') |
Guidance on considerations when sentencing for s.5 offences: prosecutor's burden when accepting factual concessions; the range of seriousness under s.5; the potential mitigating value of a reasonable belief as to age and the need for rigorous scrutiny; deterrence and protection of young children. |
The court relied on this authority for principles about scrutiny of a claimed reasonable belief as to age, the range of seriousness of s.5 offences, and the importance of deterrence and protection when assessing whether the Guideline should apply. |
| R v [Defendant] [2022] EWCA Crim 483 [2022] 2 Cr App R (S) 47 ('Mascall') |
Explained approach where Guideline may be "not appropriate" due to a genuine belief as to age: consider harm and culpability and use starting points/ranges as reference points only; factors relevant to assessing culpability and exploitation. |
The court applied Mascall's approach: having found the Guideline inappropriate in the usual way for this case, it considered categories of harm and culpability and assessed overall seriousness using the Guideline factors as reference points rather than fixed starting points. |
| Attorney General's References Nos. 74 and 83 of 2007 (Fenn and Foster) [2007] EWCA Crim 2550 [2008] 1 Cr App R (S) 110 |
Discussed the mitigating value of apparent consent and age misbelief, described "opportunistic" offending, and indicated that for young adults reasonably believing a victim to be 16 or over a minimum custodial starting point of around 4 years might be expected absent exceptional circumstances. |
The court treated Fenn and Foster as a useful guide on minimum expectations for young adult offenders and on assessing ostensible consent and opportunistic offending, applying its guidance when evaluating whether this case was exceptional. |
| Corran [2005] 2 Cr App R (S) 73 |
Authority on sentencing young defendants where consent is present and on the potential for non-custodial sentences in exceptional circumstances. |
The court referenced Corran (via the other authorities) to support the proposition that young defendants may, in exceptional cases, receive shorter custodial terms or non-custodial sentences, and applied that principle in assessing mitigation tied to youth and immaturity. |
Court's Reasoning and Analysis
The court accepted that s.5 offences encompass a wide range of seriousness and that the Guideline ordinarily calls for significant custodial sentences. The sentencing judge below had applied the Guideline, placed the offence in harm category 3 and initially in culpability category A (because sexual images were recorded), then reduced culpability to category B and reduced the notional sentence to 5 years before applying a plea discount to reach 3 years 4 months' detention.
On appeal the court reviewed the factual findings accepted below: the Appellant genuinely and reasonably believed the victim was 17; the victim had represented herself as 17 and had confirmed that to the Appellant's care-home manager by video call the day before; the victim instigated sexual contact and fully participated; there was strong evidence of the Appellant's immaturity, borderline/mild learning difficulty, mental health problems and vulnerability; there was no exploitation, coercion or culpable lack of responsibility by the Appellant; and the encounter was not fairly characterised as opportunistic.
Applying authorities (notably AG Ref 11 and 12, Fenn and Foster and Mascall), the court concluded that these factors brought the case within the class of cases where the Guideline "may not be appropriate" and that, given how clearly the specified criteria applied, it was contrary to the interests of justice to apply the Guideline starting points and ranges as fixed. The court therefore followed the correct approach from Mascall: consider harm and culpability and the aggravating and mitigating factors as guideposts to overall seriousness, but not rely on the Guideline ranges as determinative.
The court determined the case fell within harm category 3. Recording sexual images created a culpability A factor, but because of the Appellant's genuine and reasonable belief and absence of exploitation, that factor did not increase culpability materially. Having weighed inherent harm, deterrence and the Appellant's lack of culpability, the court concluded a notional post-trial custodial element of 3 years was appropriate. Giving full credit for the guilty plea, the court substituted a custodial term of 2 years' detention with the mandatory extended licence period of 1 year.
Holding and Implications
HOLDING: The appeal is allowed. The sentence of 3 years and 4 months' detention is quashed and substituted with a special custodial sentence of detention for an offender of particular concern of 2 years' detention in a Young Offender Institution with an extended licence period of 1 year.
Implications: The direct effect is substitution of the Appellant's sentence as stated above. The court applied established authorities to confirm that where a sentencer is satisfied of a genuinely reasonable belief as to age together with clear immaturity and absence of exploitation, it may be contrary to the interests of justice to apply the Guideline starting points and ranges strictly; the decision recalibrated the sentence for this case but did not purport to create a new general principle beyond that application.