GB, R. v

When sentencing an offender for sexual offences committed as a young teenager many years earlier, the court must give real weight to the offender’s age and maturity at the time. It must use the applicable youth-sentencing guidance rather than an adult starting point which produces a materially harsher sentence.

The court must assess culpability, harm and all material post-offence circumstances. It should do its best to consider the sentence likely to have been imposed had the offender been sentenced when young, while recognising the artificiality of that exercise. Where aggravating features are absent and long-term rehabilitation, good character and remorse are established, immediate custody may be wrong in principle despite the substantial harm caused to the complainant.

The appellant pleaded guilty to one count of incest and two counts of indecent assault against his sister. The offences were committed when he was aged 14 or 15 and she was aged 13 or 14. They were reported more than 50 years later.

The Crown Court at Wood Green sentenced him to 15 months’ imprisonment for incest and concurrent terms of eight months’ imprisonment for the assaults. The judge treated the modern adult sexual-offences guideline as the relevant starting point.

On appeal against sentence, the central issue was whether immediate custody was wrong in principle given the appellant’s youth when offending, the applicable youth-sentencing guidance, the absence of the specified aggravating features, and his subsequent blameless and constructive life.

1. The appeal was allowed. The custodial sentences were quashed and replaced by concurrent three-month community penalties, with a one-week residence requirement. The appellant was to be released immediately, subject to the community order and a five-year notification requirement.

2. The sentencing court had to assess culpability and harm by reference to modern guidance, while considering all material facts relating to the offender since the offences. The appellant’s age when offending was central. Although he was not being sentenced as a 15-year-old, the appellate court had to do its best to assess the sentence likely to be appropriate for a youth offender.

3. The judge had been significantly misled by use of the adult guideline. The applicable youth guidance gave a lower starting point for younger offenders where justified by age and maturity. It also provided that, absent the specified aggravating features, an offence involving penetration could attract a non-custodial sentence. The repeated assaults were an aggravating feature, but the small age disparity was mitigating.

4. The court also applied the youth-sentencing approach reflected in section 41(1) of the Children and Young Persons Act 1933. It stressed welfare, responsibility, repair of harm and reintegration rather than retribution. A current adult sentence could not properly be made far harsher than the sentence likely to have been imposed on the appellant as a 15-year-old without sound justification.

5. There was no such justification. The appellant had not offended for about 50 years, was assessed as posing no risk, had led an honest and industrious life, had assisted his family including the complainant, and was remorseful. The court did not overlook the complainant’s substantial and enduring harm, but held that immediate custody was wrong in principle in all the circumstances.

1. Court of Appeal (Criminal Division): Allowed the appeal against sentence, quashed the immediate custodial sentences, and substituted concurrent three-month community penalties with a one-week residence requirement.

2. Crown Court at Wood Green: On 15 May 2015, imposed 15 months’ imprisonment for incest and concurrent eight-month terms for two indecent assaults following guilty pleas.