Robson, R. v

Where a statutory sentencing regime applies to a person of a specified age who is convicted, the relevant age is the offender’s age on conviction. It is not the age at the offence or at sentence. A Crown Court committal power does not confer a discretion to select a different statutory regime.

A significant risk of further low-level sexual offending does not itself establish a significant risk of serious harm. The court must separately assess the likely seriousness of physical or psychological harm to future victims. A public-protection sentence is not justified where serious psychological injury is likely only among a relatively small proportion of potential victims.

The appellant was convicted in the Youth Court of two sexual assaults contrary to section 3 of the Sexual Offences Act 2003. He was under 18 when convicted, but had turned 18 by the time he appeared in the Crown Court for sentence.

The Crown Court treated him as subject to the under-18 dangerous-offender regime, found a significant risk of serious harm, and imposed concurrent extended detention sentences. It also revoked a supervision order for an earlier exposure offence and imposed a consecutive 12-month detention term.

On appeal, the issues were the relevant age for the applicable sentencing regimes, whether the appellant posed the statutory significant risk of serious harm, the Crown Court’s power on revocation of the supervision order, and the proper substituted sentence.

1. Appeal allowed. The extended detention sentences and the consecutive sentence for breach of the supervision order were quashed. The court substituted concurrent supervision orders of two years for the sexual assaults and the exposure offence.

2. For sections 225 to 228 of the Criminal Justice Act 2003, the offender’s age is fixed at conviction. The language applying the provisions where a person of a stated age “is convicted” was inconsistent with age being assessed at sentence or at the offence. The Crown Court’s enabling power under section 5A(1) of the Powers of Criminal Courts (Sentencing) Act 2000 did not permit a choice between the under-18 and adult regimes. The judge had therefore correctly treated the appellant as within sections 226 and 228.

3. The appellant presented a significant risk of further sexual assaults, but not a significant risk of serious harm. The court applied Lang [2005] EWCA Crim 2864. Repetitive sexual offending at a relatively low level does not, without more, establish that future victims are likely to suffer serious harm. Although minor physical assaults may cause severe psychological injury, the risk was not significant where only a relatively small proportion of potential victims would be likely to suffer such injury. Extended detention was therefore unavailable.

4. On revocation of the supervision order, paragraph 23(2) of Schedule 8 to the Criminal Justice Act 2003 confined the Crown Court to the sentencing powers the Youth Court would have possessed for the original exposure offence. It had no power to impose an extended sentence. The consecutive sentence was consequently unlawful.

5. The ordinary youth sentencing provisions also turned on age at conviction. A detention and training order was legally available, notwithstanding the appellant’s later age, but would have been inappropriate because his lengthy remand time could not be credited against it. A supervision order was the appropriate sentence.

• Court of Appeal (Criminal Division): Allowed the appeal, quashed the sentences and substituted supervision orders: [2006] EWCA Crim 1414.
• Bristol Crown Court: Imposed concurrent extended detention sentences for the sexual assaults and a consecutive 12-month detention sentence following revocation of a supervision order.
• Bath and Wansdyke Youth Court: Convicted the appellant of two sexual assaults and committed him to the Crown Court for sentence under section 3C of the Powers of Criminal Courts (Sentencing) Act 2000.