LIJ, R. v

Factual and Procedural Background

The Appellant was convicted after a jury trial in the Crown Court of two counts of causing or inciting a child under 13 to engage in sexual activity and two counts of rape of a child under 13, arising from conduct committed when he was aged 11 to 13. [Para 27] He was sentenced to a total of seven years' imprisonment, and both a Sexual Harm Prevention Order and a Restraining Order were made, together with indefinite notification requirements. [Para 28][Para 29] He appealed against sentence with leave of the single judge, and the victims were entitled to lifelong anonymity, requiring the Appellant to be anonymised as well. [Para 30][Para 32]

Legal Issues Presented

1. Whether the sentence was manifestly excessive or otherwise wrong in principle because the sentencing judge did not properly apply the youth sentencing regime for offences committed when the Appellant was a child. [Para 71][Para 72][Para 75]
2. Whether consecutive sentencing and the overall total offended the principle of totality. [Para 73]
3. Whether the Sexual Harm Prevention Order and associated notification period should remain indefinite or be reduced in light of the revised sentence. [Para 116]-[Para 121]

Arguments of the Parties

Appellant's Arguments

• The sentence was said to be manifestly excessive given the Appellant's age at the time of offending, the youth sentencing guidelines, and totality. [Para 71][Para 74]
• The sentencing judge was said to have failed to apply properly the sentencing guidelines for children and young people, including the need to give sufficient reduction for age and immaturity. [Para 72]
• It was argued that insufficient weight was given to mitigation, including abuse in childhood, mental health difficulties, lack of previous sexual offending, vulnerability in custody, and the psychiatric and mental health reports. [Para 73]
• The consecutive sentences were said to produce an excessive total term contrary to totality. [Para 74]
• The judge was said to have failed to have sufficient regard to R v Ahmed, R v Bowker, and the relevant youth sentencing authorities. [Para 75]

Table of Precedents Cited

Court's Reasoning and Analysis

The court said the correct starting point was R v Ahmed, which requires a sentencing court to ask what sentence would have been passed on the offender had he been sentenced as a child, taking account of the maximum sentence and the available sentencing options at that time. [Para 77][Para 79] The court quoted Ahmed to emphasise that children are treated differently from adults because they are less culpable and the Children guideline remains relevant even where many years have passed. [Para 82][Para 83][Para 85]

The court reviewed the youth sentencing regime applicable when the Appellant was aged 11 to 13, noting that detention under section 91 of the PCC(S)A was not available to an 11-year-old, that a DTO was only available for certain 12- to 13-year-old persistent offenders, and that non-custodial options had to be considered if persistent-offender status was not made out. [Para 88][Para 90][Para 92][Para 94][Para 96][Para 102][Para 106][Para 107] It concluded that the sentencing notes had not adequately assisted the trial judge on these matters and that the trial judge instead started from an adult sentence and reduced it by 60%, which was not the approach required by the Children guideline. [Para 103][Para 108]

The court considered the Appellant's extreme youth at the time of offending, the absence of previous contact with authority, and the likelihood that he would not have been treated as a persistent offender, which meant custodial disposal should not have been chosen. [Para 104][Para 106][Para 107] It held that the trial judge fell into error in concluding that custody was required and that, properly applying the guidelines and mitigation, the offences should have been met with a non-custodial option. [Para 109][Para 111][Para 112]

On the Sexual Harm Prevention Order and notification requirements, the court accepted written submissions that an indefinite order was unnecessary and held that, given the offender's age at the time and now, a five-year order was the minimum appropriate period. [Para 116][Para 119][Para 120]

Holding and Implications

The appeal was allowed. The court substituted a 24-month community order with an accredited programme and Rehabilitation Activity Requirement days, and it declined to impose a punitive requirement because the Appellant had already served part of a custodial sentence pending appeal. [Para 112] It also reduced the Sexual Harm Prevention Order from indefinite duration to five years, which in turn limited the notification requirements to five years. [Para 120][Para 121]