Mooney, R v

In sentencing for rape of a child under 13, the complainant’s consent does not affect criminal liability but may materially mitigate sentence. The protective purpose of the offence remains central, including where the child appeared mature or represented herself as older.

Where the circumstances are exceptional, including an absence of predatory conduct, grooming, exploitation or consequential harm beyond that inherent in under-age intercourse, a radical departure from adult rape guidelines may be justified. The sentencing court must assess the real circumstances of the offending and may find that the guidelines give little practical assistance.

The appellant, aged 17 at the time, pleaded guilty to two counts of rape of a child under 13. He received concurrent terms of 30 months’ detention under section 91 of the Powers of Criminal Courts (Sentencing) Act 2000.

The complainant was 12 but told him she was nearly 15. The sexual activity was consensual and initiated by her. The appellant had offered the girls accommodation as an act of kindness, had not supplied alcohol, and there was no predatory or grooming conduct. He appealed on the ground that, despite the substantial departure already made from the adult rape guideline, the sentence remained excessive.

1. Appeal allowed. The concurrent 30-month detention sentences were quashed and replaced with a 12-month detention and training order.

2. Consent was irrelevant to the offences, whose primary purpose was to protect very young girls, including from their own immaturity and from those who might exploit it. It was nevertheless relevant mitigation at sentence. Both the actual age disparity, 17 and 12, and the disparity as the appellant believed it to be, 17 and 14, remained relevant.

3. The adult rape guideline did not readily fit this case. Its central premise was non-consensual intercourse and significant harm to the complainant. Here there was undisputed consent, no predatory conduct, grooming, provision of alcohol or exploitation of difficult circumstances. The complainant had come to the house because the appellant offered the group accommodation, and she had lied about her age.

4. The court accepted that a custodial sentence was not wrong in principle. However, the exceptional circumstances, including the complainant’s and her family’s attitude, called for a more radical departure from the guideline than the sentencing judge had made. On these facts the guideline offered little practical assistance, and 30 months was considerably too long. A 12-month detention and training order adequately marked the offending and the protective purpose of the legislation.

• Court of Appeal (Criminal Division): Allowed the sentencing appeal in [2010] EWCA Crim 698, quashed concurrent 30-month detention sentences, and substituted a 12-month detention and training order.
• Sentencing court: Following guilty pleas to two counts of rape of a child under 13, His Honour Judge Salomonsen imposed concurrent 30-month detention sentences pursuant to section 91 of the Powers of Criminal Courts (Sentencing) Act 2000.