Factual and Procedural Background
The Court of Appeal Criminal Division considered an application by the Solicitor General under section 36 of the Criminal Justice Act 1988, alleging that the sentence imposed on the Offender for five historical sexual offences against the Victim was unduly lenient. The Offender had pleaded guilty. [1]
The offences comprised two oral rapes of a child under 13, an attempted vaginal rape, and two offences of penetration of a child under 13. The sentencing court imposed concurrent sentences of 18 months’ imprisonment, suspended for two years, together with unpaid work and rehabilitation requirements. [2]
The sentencing court proceeded on the basis that the offending occurred in 2007 and 2008, when the Victim was aged between four and six and the Offender was aged between 11 and 13. It also treated one count as involving numerous oral rapes. The Court of Appeal found those assumptions factually erroneous or unsupported by the evidence. [3]
The Court of Appeal concluded that the evidence did not establish that the Offender was aged 12 or 13 at the time of the last offending, and that the relevant count concerned a single incident rather than multiple incidents. [4][5][6]
Reporting restrictions applied to protect the Victim’s lifelong anonymity, requiring the Offender and other identifying information to be anonymised. [7][8]
Legal Issues Presented
- What was the proper factual basis for sentencing, particularly concerning the Offender’s age and the number and frequency of the offences? [4]
- Whether, applying the principles governing the sentencing of adults for offences committed as children, the sentence imposed was unduly lenient. [9][10]
- Whether subsequent offending and the lasting impact on the Victim justified a sentence exceeding the sentence that would probably have been imposed when the Offender was a child. [11][12]
Arguments of the Parties
Attorney General’s Arguments
- The sentencing court was correct to proceed on the basis that the Offender was aged 13 at the time of the last offending. [13]
- The Offender should be treated as a persistent offender, permitting a Detention and Training Order despite the absence of earlier findings of guilt at the relevant time. [13]
- The later sexual offending showed that the index offending was not isolated and justified a sentence under section 91 of the Powers of Criminal Courts (Sentencing) Act 2000, with immediate custody substantially exceeding 24 months. [13][14]
- Alternatively, even if a sentence of 24 months or less was appropriate, suspension was wrong in principle because a Detention and Training Order could not be suspended and the seriousness of the offending weighed against suspension. [14]
Offender’s Position
- The opinion does not set out a detailed separate account of the Offender’s submissions at the appeal hearing.
- The defence had not provided a sentencing note, although the authority R v Ahmed had been uploaded to the case system. [15]
Table of Precedents Cited
| Precedent |
Rule or Principle Cited For |
Application by the Court |
| R v Ahmed [2023] EWCA Crim 281 |
Sentencing an adult for offending committed as a child requires consideration of the Children guideline, the maximum sentence available when the offending occurred, and the sentence likely to have been imposed at that time. A more severe sentence requires good reason. [16][17] |
The Court used these principles to treat a non-custodial sentence as the starting point because the Offender was no older than 11 at the relevant time, and found no good reason to depart from it. [9][12] |
| Forbes |
The opinion refers to a disputed aspect of the approach to exceeding the maximum sentence available to a child offender. [18] |
The Court expressed doubt about that aspect of Forbes, but stated that the issue was not directly argued and therefore did not decide it. [18] |
| R v XYZ [2026] EWCA Crim 845 |
The authority was cited as having authoritatively considered the correct stepped approach to applying the guideline on sentencing children and young people for sexual offences. [19] |
The opinion mentions the authority but does not set out or apply its reasoning separately. [19] |
Court's Reasoning and Analysis
The Court first reconstructed the factual basis for sentence. The Victim’s evidence contained uncertainty about when the offending stopped and when the Offender left the family home. The available evidence did not establish that the Offender was aged 13 at the time of the last offence. [20][21]
Because the relevant age materially affected the sentencing powers available, the Court held that the Offender had to be sentenced on the basis most favourable to him unless the court could be sure that he had reached the relevant age. The proper basis was that he was no older than 11, shortly to become 12. [22][5]
The Court also rejected the assumption that the oral rape count represented numerous incidents. The Victim could specifically recall only two occasions, and the indictment charged the second occasion as a single incident. The Offender therefore had to be sentenced on the offences charged unless he had clearly admitted more extensive offending, which he had not. [23][6]
Applying Ahmed, the Court considered the sentence that would probably have been imposed shortly after the offending. A Detention and Training Order was unavailable to an 11-year-old, and the Court agreed that this was not one of the rare cases in which custody under section 91 would have been unavoidable. The appropriate starting point was therefore a non-custodial sentence. [9]
The Court considered the later sexual offending and the serious, enduring effect on the Victim. It accepted that the later offending showed that the index offending was not isolated, but concluded that this did not provide a sufficient reason for imposing a sentence more severe than the available child sentence. [11][12]
The Court placed weight on the Offender’s young age, the possible influence of his own experience of sexual abuse, the absence of further sexual offending for approximately 15 years, and the possibility that earlier education and therapy might have prevented the later offending. [12]
Holding and Implications
Leave to refer the sentence as unduly lenient was refused. The Court held that the sentence was not unduly lenient. [24][10]
The direct effect was that the suspended sentence and associated requirements remained undisturbed. The decision applied existing sentencing principles to the uncertainty concerning the Offender’s age and the limited number of proved incidents; the opinion identifies no broader new precedent.