Clinch, R v

In sentencing for sexual activity with a child, the court must give proper and separate credit for a guilty plea and all relevant personal and offence-specific mitigation. A substantial custodial sentence may remain necessary despite consensual activity and an offender’s influence by a dominant co-offender. However, the sentence must fairly reflect the limited duration and number of offences, the offender’s mitigation, and the role played by the co-offender. The breadth of the applicable sentencing range means that comparisons with earlier reported sentencing decisions will usually provide limited assistance.

The appellant pleaded guilty at Nottingham Crown Court to four offences of sexual activity with a child and one offence of possessing indecent photographs of a child. He received concurrent sentences producing a total of six years’ imprisonment.

The sexual offences concerned repeated consensual oral and anal activity with a boy living at the appellant’s home. The appellant’s co-defendant was the dominant partner and had initiated the abuse, but the appellant also committed offences when acting alone. The appellant appealed by leave of the single judge, contending that the total sentence was manifestly excessive.

1. Appeal allowed. The total sentence of six years’ imprisonment was manifestly excessive and was reduced to four years.
2. The offences were serious and required a substantial custodial sentence. The consensual character of the activity did not remove their seriousness. Nor did the appellant’s susceptibility to the influence of his dominant co-defendant excuse his independent decision to abuse the child for his own sexual gratification.
3. The applicable definitive guideline identified a four-year starting point after trial for a single offence involving consensual anal or oral penetration, with a range of three to seven years. The breadth of that range reflected the fact-sensitive nature of sentencing in this category. Earlier reported sentencing decisions were therefore of limited assistance.
4. The sentencing judge’s nine-year starting point before credit for plea was too high. In addition to the one-third credit for the guilty plea, proper credit had to be given for the consensual activity, the appellant’s introduction to offending by the co-defendant, the relatively limited number and period of offences, the nature of their relationship, the absence of significant aggravating features specific to the appellant, and his substantial personal mitigation.
5. Giving effect to all those matters, the appropriate total sentence was four years. The six-year sentences on the anal-penetration counts were reduced to four years. The remaining concurrent sentences stood, and time on remand continued to count towards sentence.

• Court of Appeal (Criminal Division) By leave of the single judge, allowed the sentence appeal and reduced the total sentence from six to four years: [2008] EWCA Crim 1630.
• Crown Court at Nottingham On 15 October 2007, imposed a total sentence of six years’ imprisonment following guilty pleas.