No. 2015/03476/A5
Neutral Citation Number: [2015] EWCA Crim 1579

IN THE COURT OF APPEAL
CRIMINAL  DIVISION
Royal Courts of Justice
The Strand
London
WC2A 2LL

Tuesday  18th  August  2015

B e f o r e

LORD  JUSTICE  TREACY

MR  JUSTICE  SWEENEY

and

MR  JUSTICE  PICKEN

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R E G I N A
 
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H
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Mr K Saunders appeared on behalf of the Applicant

Mr S Heptonstall appeared on behalf of the Crown
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J U D G M E N T
Tuesday  18th  August  2015

LORD JUSTICE TREACY:  
1.  This application for leave to appeal against sentence has been referred to the Full Court by the Registrar.  We grant leave.

2.  On 25th June 2015, having previously pleaded guilty at the Youth Court, the applicant was committed to the Crown Court for sentence in respect of four offences of rape of a child under 13.  On 22nd July 2015 in the Crown Court at Warwick he was sentenced to an 18 month detention and training order, to run concurrently on each count.

3.  Since these are sexual offences, the provisions of the Sexual Offences (Amendment) Act 1992 apply to this case.  No matter which is likely to lead to the identification of the victim shall be published during her lifetime.  That restriction is of automatic application.

4.  In the proceedings below, both the Youth Court and the Crown Court purported to make orders under section 39 of the Children and Young Persons Act 1933 restricting publicity both in relation to the victim and to the appellant.  In relation to the victim such an order was unnecessary in the light of the automatic sexual offences reporting restriction.

5.  However, as from 13th April 2015, section 39 of the 1933 Act was amended so as to disapply it to criminal proceedings commenced after that date.  The proceedings in this case were indeed commenced after that date.  For the purposes of criminal proceedings section 39 has been replaced by section 45 of the Youth Justice and Criminal Evidence Act 1999.

6.  Section 45(3) provides that the court may direct that no matter relating to any person concerned in criminal proceedings shall, whilst he is under the age of 18, be included in any publication if it is likely to lead members of the public to identify him as a person concerned in the proceedings.  An order under this section may be made in respect of a witness (including the victim) or a defendant and has effect until the defendant attains the age of 18 (section 45(7)).  In deciding whether to make an order, the court should have regard to the welfare of the person concerned (section 45(6)).

7.  Section 45(8) identifies particular examples of information that a reporting restriction under section 45 may contain, including the young person's name, home address, school, place of work, or still or moving images.  As with any departure from open justice there must be a good reason for imposing an order under section 45.  The court must be satisfied that on the facts of the case before it the welfare of the child outweighs the strong public interest in open justice.

8.  A body of case law dealing with the approach to matters under section 39 of the Children and Young Persons Act has built up.  Given the similarities between the terms of section 39 of the 1933 Act and section 45 of the 1999 Act, we consider that that case law continues to provide appropriate guidance as to the principles and practice to be followed concerning applications of this sort under section 45.

9.  We have considered the circumstances of this case and the reports before the court relating to the welfare of the appellant.  We have come to the conclusion that an order restricting reporting of his identity is in the circumstances appropriate, having balanced the legitimate public interest in open reporting against the appellant's age and the potential damage to him of identification.  We have also taken account of the further factor identified by Mr Saunders, which is that if the appellant's identity were to be disclosed at this stage, there is a possibility of indirect identification of the victim given the circumstances of the case.

10.  Accordingly, we make an order under section 45(3) prohibiting publication of the appellant's name, address, the identity of any educational establishment attended by him, and any still or moving picture of him.  That order will remain in place until his 18th birthday.  For law reporting purposes this case should be entitled R v H.

11.  The facts show that in March 2014, when the complainant was 12 and the appellant was 15, they met at school and started a boyfriend/girlfriend relationship.  Initially the appellant thought that the complainant was 14, but he soon discovered that she was only 12.  At all times material to these offences he knew that she was 12.  However, he continued to tell his parents throughout the relationship that the girl was 14.  As the judge below commented, he must have been aware that his parents would have stepped in had they known her true age.

12.  After the appellant turned 16 in June 2014, a sexual relationship started.  It involved both oral and vaginal intercourse.  Between June 2014 and November 2014 vaginal intercourse took place on about ten occasions, with oral sex occurring, as the appellant put it in interview, "quite a lot".

13.  In December 2014 the complainant alleged to the police that she had been "forced" to have intercourse with the appellant.  When the appellant was interviewed, he freely admitted both oral and vaginal intercourse but said that it was all consensual.

14.  Subsequent police investigations revealed messages from the complainant to the appellant which undermined her account as to having been forced.  It was demonstrated that there had indeed been consensual sexual activity.  The complainant herself subsequently acknowledged that that was the case.

15.  In June 2015 the appellant was charged with four specimen offences (three vaginal rapes and one oral rape).  He pleaded guilty at the first opportunity in the Youth Court on a basis which was accepted.  The basis was that the offences had commenced shortly after he had turned 16.  Further, if the complainant had had the capacity to consent, then everything which took place was on a consensual basis.  There was a specific denial of the use of force at any time.

16.  In passing sentence the judge accepted that basis of plea, but said that it was important to emphasise that everything which had occurred took place when the appellant was 16 and the complainant was 12.  The judge referred to the number of occasions on which offences had been committed, the gap in age between the parties, the appellant's misleading of his parents as to the girl's age, and the purpose of the legislation which was to protect children under 13 from themselves.  

17.  The judge said that he was confident that the appellant knew exactly what he was doing and knew that it was wrong.  On the other side of the coin, the judge recognised the mitigation available in passing the sentence which he did.

18.  The grounds of appeal submit that the sentence passed did not properly reflect the facts of the case and the available mitigation.  It was submitted that a custodial sentence was wrong in principle and that a term of 18 months was manifestly excessive.

19.  The appellant was aged 17 at the time of sentence, but had been 16 when the offences were committed.  He was of previous good character.  He came from a respectable family.  He had been a good student and earned a good school report.  Having left school he was pursuing a college course with a view to working in the sports industry, but in the light of the charges had been advised to abandon that course.

20.  There was a full report from Ms Boyd of Coventry Youth Offending Services which spoke of the appellant as being a quiet and shy individual who had led a relatively sheltered life.  It stated that the appellant had expressed remorse and at the time had felt that he was in a genuine relationship.  

21.  Ms Boyd accepted a social worker's assessment, which we have also seen, to the effect that the appellant was emotionally immature.  Her view was that the appellant was at a low risk of reoffending.  That view was fortified by the fact that the appellant had been removed from a Child Protection Plan prior to the court hearing in the light of the low risk which he posed.  Ms Boyd's view was that the appellant had the capacity to lead a pro-social and productive lifestyle in the future.  She proposed that the court make a youth rehabilitation order with requirements.

22.  Some concern had been expressed in the reports as to the appellant's ability to cope with a custodial sentence.  We have seen a report from the establishment where he is currently in custody.  It shows that he has settled in well.  He has behaved in an exemplary fashion and has shown positive engagement with offender behaviour work.

23.  Reliance was place before the judge below and in the grounds of appeal on the decision of this court in R v Corran [2005] EWCA Crim 192.  Corran predated the sentencing guidelines provided by both the Sentencing Guidelines Council and then the Sentencing Council.  As this court observed in Attorney General's Reference No 105 of 2014 (R v Harrak) [2015] 1 Cr App R(S) 45, Corran has limited value as a relevant sentencing authority since sentencing practice has moved on.

24.  As far as guidelines themselves are concerned, for an adult this case would fall into category 3B of the guideline, showing a starting point of eight years' custody and a range of six to eleven years.  The guideline itself at page 28 states that it is designed to deal with the majority of offending behaviour in this class of case which deserves a significant custodial sentence.

25.  However, the guideline goes on to say that there may be exceptional cases where a lengthy community order with a requirement to participate in a sex offender treatment programme may be the best way to change the offender's behaviour and to protect the public.  Those observations primarily apply to adult offenders.  The guideline goes on to comment on the situation where regard is had to it in the context of a young offender.  It says that the guideline may not be appropriate where the sentencer is satisfied that, on the available evidence and in the absence of exploitation, a young and/or particularly immature offender genuinely believed on reasonable grounds that the victim was aged 16 or over and that they were engaging in lawful sexual activity.  This last observation does not apply to the facts of this case since the appellant was aware of the victim's age.

26.  Quite apart from that guidance, it will be necessary for any court where a young offender is before it to pay close attention not only to the facts of the case but also to the circumstances of the offender.  That approach is reinforced by the Sentencing Guidelines Council's guidance in relation to young offenders and the emphasis, wherever possible, upon the avoidance of custodial sentences and a concentration upon the welfare of the young offender.  Where custody is unavoidable, the guideline suggests for a young offender aged between 15 and 17 a starting point of one-half to three-quarters of that which would have been appropriate to an adult offender.

27.  The first question for us is whether the judge's decision to impose a custodial sentence was wrong in principle or manifestly excessive.  There is no doubt that there were many mitigating factors available to the appellant.  It was accepted that what took place was not forced and that the complainant appeared to have assented to it.  The appellant was of previous good character.  His behaviour and family circumstances had otherwise given no cause for concern.  He had educational ambitions.  Whilst in custody he has shown a readiness to engage with rehabilitative and preventative work.  He had been frank and apparently remorseful, and he had pleaded guilty at the earliest possible opportunity.  He represented a low risk of re-offending.  In addition, at the time of his offending he was aged 16 and had been described as emotionally immature.

28.  Those considerations are balanced by the disparity in the age between the parties and the evidence that the appellant knew that what he was doing was wrong.  His false pretence to his parents about the victim's age clearly demonstrates this.  What took place was not mere experimentation, as has been submitted to us; it was a settled and relatively frequent course of conduct which took place over several months in circumstances where the appellant clearly knew that what he was doing was wrong. 

29.  We recognise that what took place did not involve coercion or obvious exploitation.  Nonetheless, the participation of the victim has to be seen in the context of someone of her chronological age who may need to be protected from her own immature urges and inclinations. As we have already commented, what occurred took place over a significant period of time and on an appreciable number of occasions.  We also remind ourselves that the guidelines are primarily concerned with single offences, not multiple offending as occurred here.

30.  Whilst considerable emphasis has been laid upon the appellant's youth and matters favourable to him, we have come to the conclusion in all the circumstances that the imposition of a custodial sentence was not one with which we should interfere, even when regard is had to the guidelines for young offenders.  We are not persuaded that the judge's conclusion in this respect was one which was either wrong in principle or manifestly excessive.

31.  It is clear that the judge made very considerable reductions in the term which he imposed in order to reflect the facts of the case, taken together with the appellant's guilty pleas.  However, in the particular circumstances of this case we feel that he did not make sufficient allowance for the mitigation available to the appellant and the need to keep custody, if justified, to a minimum.  The good reports which we have received in relation to the appellant's time in custody enable us to give added weight to those factors which are favourable to him.

32.  We have come to the conclusion that in the circumstances, although custody was justified, the sentence imposed was too long.  We give effect to that conclusion by reducing the term of 18 months to one of a 12 month detention and training order, to run concurrently on each count.