Channer & Anor, Re (Rev 1)

For rape of a child under 13, section 5 of the Sexual Offences Act 2003 makes consent and mistake as to age immaterial to criminal liability. In sentencing, ostensible willingness and apparent age may inform culpability, but they carry little mitigating weight where adults opportunistically exploit a young child. A belief that the child was aged 13 to 15 is not a recognised mitigating factor under the guideline. The marked disparity in maturity, group participation and recording of the event materially aggravate seriousness. Sentencers must begin with the applicable section 5 guideline table and justify any departure from its range. Deterrence, protection of children and likely long-term harm require substantial weight.

The Attorney General referred as unduly lenient the sentences imposed on Roshane Channer and Ruben Monteiro for separate offences of rape of the same 11-year-old child. Each offender, aged 20 at the time, pleaded guilty at Luton Crown Court. Following a Newton hearing, the judge sentenced on the basis that the child had been a willing participant and that the offenders could reasonably have believed her to be 14, but no older.

The judge treated the case as exceptional, departed from the guideline starting point for rape involving more than one offender, and imposed 40 months’ imprisonment on each offender after credit for guilty pleas. The reference raised the proper application of the sentencing guideline and the weight properly attributable to ostensible willingness and an asserted mistake as to age in a section 5 offence.

Disposition

The court granted leave and allowed the Attorney General’s reference. The sentences were unduly lenient. Each sentence of 40 months was quashed and replaced with seven years’ detention in a young offender institution.

1. Section 5 of the Sexual Offences Act 2003 deliberately renders a child under 13 incapable of giving legally significant consent. The offence nevertheless covers a wide factual range. Sentencing must therefore assess the particular harm and culpability, rather than treat every section 5 offence as identical in seriousness.

2. Ostensible consent or willingness may be relevant to culpability, but requires careful scrutiny. It has little mitigating value where the activity is opportunistic or exploitative. Adults who engage in sexual activity with a young child must consider the child’s vulnerability and cannot evade responsibility by relying on apparent willingness.

3. The court followed the guidance in Attorney General’s References Nos 74 and 83 of 2007 (Fenn and Foster) [2007] EWCA Crim 2550. A reasonable belief that a child was 16 or over may exceptionally mitigate sentence, particularly for a young adult. A belief that the child was aged only 13 to 15 is not recognised by the guideline as mitigation. The respective ages and maturity of offender and child remain important to seriousness.

4. The sentencing judge had correctly established the factual basis and identified relevant aggravating and mitigating features. He erred, however, in concluding that the level 2 guideline for rape by more than one offender was not designed for this case. The applicable starting point was the table for section 5 rape, not the table for sexual activity with a child aged under 16 contrary to section 9.

5. Here, the offenders knew the child was no older than 14, made no enquiry as to her age, exploited a child much younger and less mature than themselves, acted jointly, and permitted the event to be recorded. Her willingness was the only available mitigating feature and was of little weight. Punishment and deterrence were the primary objectives. The proper starting point was not below 11 years’ custody; after full credit for guilty pleas, seven years’ detention was substituted for each offender. The existing directions for time spent in custody continued.

1. Court of Appeal (Criminal Division) — On the Attorney General’s reference under section 36 of the Criminal Justice Act 1988, the court held that the sentences were unduly lenient, quashed them and substituted seven years’ detention in a young offender institution.
2. Luton Crown Court — On 10 February 2012, each offender was sentenced to 40 months’ imprisonment for rape of a child under 13.