Thomas, R. v

For sentencing sexual activity with a child family member, the gravity lies in abuse of the relationship with the child. A fixed hierarchy borrowed from incest sentencing is inappropriate. Nor is offending necessarily less serious because the child has left foster care where the relationship formed during that care enabled the offending. The assessment should address the parties’ ages and age gap, the nature of the sexual activity, including penetration, and the number of occasions. Full sexual intercourse will generally be at or near the top of the range of seriousness.

The appellant, a former foster carer, pleaded guilty at Harrow Crown Court to two counts of sexual activity with a child family member, contrary to section 25(1) and (6) of the Sexual Offenders Act 2003. The complainant was 17 and no longer in his care when the two consensual acts of sexual intercourse occurred.

On 5 January 2005, the Crown Court imposed four years’ imprisonment. The Registrar referred the application for leave to appeal against sentence to the Full Court because this was the first appeal concerning this form of offence under the section. The central issue was whether the sentence was manifestly excessive and how seriousness should be assessed for this offence.

1. Leave was granted and the appeal against sentence was allowed. The concurrent sentences of four years’ imprisonment were quashed and replaced with concurrent sentences of two years and six months’ imprisonment.
2. The gravamen of the offence is the abuse of a relationship with a child. It protects the family relationship defined by section 27 of the Sexual Offenders Act 2003. The Court rejected a fixed hierarchy which treated incest as necessarily the gravest category, current foster care as the next, and former foster care as the least serious. Foster care and blood relationships raise different considerations. An offence after foster care has ended is not necessarily less serious, particularly where the former care relationship made the offending possible.
3. Three matters were especially pertinent to sentence: the parties’ ages, the nature of the sexual activity, and the number of occasions. Greater youth and a larger age gap ordinarily increase seriousness. The nature and duration of penetration matter; penile penetration will usually be more serious than non-penile penetration, and full sexual intercourse will generally be at or near the top of the range. The Court referred to the discussion of penetration in Attorney-General's Reference No 1O4 of 2004 (R v Garvey & Ors) [2004] EWCA Crim 2672 and to observations in Corran & Ors [2005] EWCA Crim 192.
4. Applying those matters, and giving proper weight to the early guilty pleas, previous good character and references, the sentences were manifestly excessive. The appropriate automatic notification period following the substituted sentence was indefinite.

• Court of Appeal (Criminal Division) — granted leave and allowed the appeal against sentence, reducing the concurrent sentences from four years to two years and six months’ imprisonment.
• Harrow Crown Court — following guilty pleas on 2 December 2004, imposed four years’ imprisonment on 5 January 2005.