Sharp, R v

In sentencing a child for a serious sexual assault, custody may be justified, but the length of detention must reflect the child’s limited culpability, early guilty plea and compelling personal mitigation. Where the court finds no significant risk of serious harm, those factors may make a lengthy custodial sentence manifestly excessive.

A structured supervision order may provide the appropriate response where the dominant sentencing need is sustained supervision and specialist treatment to reduce future harm.

The appellant, aged 12 when the offence was committed, admitted sexually assaulting a vulnerable 75-year-old woman in her home. The Wakefield Youth Court committed him for sentence after considering that the Crown Court might need to assess dangerousness.

At Leeds Crown Court he received four years’ detention under section 91 of the Sentencing Act 2000. The sentencing judge found that he did not present a significant risk of serious harm.

The appeal concerned whether the custodial term was wrong in principle or manifestly excessive, having regard to the seriousness of the assault, the appellant’s severely damaging childhood experiences, his plea, and expert evidence favouring intensive residential supervision and treatment.

1. Appeal allowed. The four-year detention sentence was manifestly excessive. Although a custodial sentence for sexual assault by a 13-year-old would not necessarily be wrong in principle, the appellant’s age, limited culpability, early admission of guilt and powerful personal mitigation required a very substantial reduction in any custodial term.

2. The offence was serious. The appellant exploited an unexpected invitation into the home of an elderly and vulnerable woman, who was plainly unable effectively to resist him at the outset. The court treated the victim’s distress as significant harm. However, the appellant could not be sentenced on the basis that the assault caused her subsequent death, since the evidence could not have supported such a charge.

3. The sentencing judge had found no significant risk of serious harm. In those circumstances, a four-year term could not be justified. The appellant’s traumatic upbringing explained, without excusing, both his limited culpability and the need for an intervention directed to the risk of future harmful behaviour.

4. The dominant sentencing need was close, long-term supervision in a structured setting, with programmes addressing sexualised offending and supporting healthy development. The court accepted the expert assessment that a return to the mainstream community without that structure was not feasible.

5. The detention sentence imposed under section 91 of the Sentencing Act 2000 was quashed. It was replaced by a three-year supervision order containing the treatment and programme elements identified in the expert report. Registration and police notification remained for two and a half years, and the court did not disturb the lifting of reporting restrictions.

• Court of Appeal (Criminal Division): Allowed the appeal against sentence, quashed four years’ detention, and substituted a three-year supervision order.
• Crown Court at Leeds: On 17 December 2007 imposed four years’ detention under section 91 of the Sentencing Act 2000.
• Wakefield Youth Court: On 5 December 2007, following the appellant’s admission of sexual assault, committed him for sentence because it considered that dangerousness might require assessment in the Crown Court.