Corran & Ors, R v

Sentences for the expanded sexual offences in the Sexual Offences Act 2003 must reflect both the statutory maximums and the wide factual range covered by the new offences. For rape of a child under 13, custody will usually be necessary, but the child’s apparent consent, the offender’s age and the age disparity remain highly material to sentence. An exceptional young offender may receive a non-custodial sentence.

For penetrative activity with a child under 16, reasonable belief that the child was 16 is a defence where available; for rape of a child under 13 it is mitigation only. When imposing a discretionary life sentence to protect the public, the notional determinate term must not duplicate the protection supplied by the life sentence.

This guideline judgment determined four unrelated sentencing appeals or applications arising from offences under the Sexual Offences Act 2003. The court gave preliminary guidance on sentences for sexual offences involving children, including rape of a child under 13, penetrative activity with children under 16, sexual assault, and sexual activity in a child’s presence.

Corran appealed a two-year detention sentence for consensual intercourse with a 12-year-old who had represented herself as 16. Cutler challenged sentences for repeated penetrative activity with a 13-year-old. Heard challenged an extended sentence for offences against a 14-year-old and for indecent images. Williams challenged the notional determinate term attached to a life sentence for digital anal penetration in the context of repeated abduction and sexual abuse of an 11-year-old.

1. General guidance. The court gave non-prescriptive guidance under the Sexual Offences Act 2003. The wider definitions of rape and assault by penetration cover conduct of markedly differing gravity. Sentencers must therefore assess all the circumstances rather than treat the common maximum of life imprisonment as determining the proper level of sentence. The guidance in Attorney-General's Reference No 104 of 2004 (R v Garvey) [2004] EWCA Crim 2672 and the aggravating and mitigating features in R v Millberry [2003] 2 Cr App R(S) 142 remained useful.

2. Children under 13. Rape contrary to section 5 will very seldom justify anything other than immediate custody. Consent is not an ingredient, but its presence is material to sentence, particularly for young defendants. The offender’s age, the age difference, maturity, relationship, frequency and circumstances of penetration, consequences, remorse, risk of repetition, reasonable belief as to age, and guilty plea all bear on sentence. A young offender in an exceptional consensual case may properly receive a non-custodial sentence.

3. Other child sexual offences. Parliament’s higher maximum sentences for sections 9 and 10 require an appropriate increase in sentencing levels. A section 5 offence will generally be more serious than an offence under sections 9 or 10. Sexual assault under section 7 will generally be less serious than offences under sections 8, 9 and 10, and will not invariably pass the custody threshold. Sections 11 and 12 usually attract lower sentences than sexual activity with a child, although their ten-year maximum must be respected.

4. The individual cases. Corran’s appeal was allowed. Given the wholly exceptional mitigation, the two-year detention and disqualification from work with children were quashed and replaced by a six-month conditional discharge. Cutler’s application for leave to appeal was refused. Heard’s appeal was allowed because the starting point was too high: his extended sentence was reduced to six years, comprising four years’ custody and two years’ licence.

5. Williams. The digital anal penetration of an 11-year-old, in the setting of repeated abduction and sexual abuse, was very serious and justified a life sentence. However, following R v Wheaton [2004] EWCA Crim 2270, a judge fixing a notional determinate term for a discretionary life sentence must avoid adding a further element for public protection. That protection is supplied by the life sentence. The notional term was reduced from nine to six years, with a specified custodial period of two years and nine months after credit.

• Court of Appeal (Criminal Division): issued sentencing guidance; allowed Corran’s appeal, refused Cutler leave to appeal, allowed Heard’s appeal, and allowed Williams’s appeal only as to the notional determinate term.
• Crown Courts: Mold Crown Court sentenced Corran to two years’ detention; Southampton Crown Court imposed an extended sentence on Cutler; Nottingham Crown Court imposed an eight-year extended sentence on Heard; and Cardiff Crown Court imposed life imprisonment on Williams with a nine-year notional determinate term.