RF, R. v

Sentencing for sexual activity with a child family member must begin with the applicable Sentencing Council Guideline category. Penetration places offending in harm category 1. A significant disparity in age may place it in culpability category A. Where those features occur across several counts in a sustained course of conduct, the sentence must reflect both the category 1A starting point and the wider offending, while allowing proper credit for guilty pleas and relevant mitigation. A suspended sentence of two years was unduly lenient on these facts.

The Attorney General referred sentences imposed at Worcester Crown Court as unduly lenient under section 36 of the Criminal Justice Act 1988.

The offender had pleaded guilty to four counts of sexual activity with his 16-year-old foster daughter, contrary to section 25(1) of the Sexual Offences Act 2003. The penetrative offending extended over about seven months and represented a wider admitted course of sexual activity. He also admitted a breach of notification requirements.

The Recorder imposed concurrent terms of two years’ imprisonment, suspended for two years, on the sexual counts. The central issue was whether those sentences were unduly lenient having regard to the applicable sexual-offences guideline.

1. The Attorney General’s reference was allowed. The court granted leave and held that the concurrent suspended terms of two years for the four sexual offences were unduly lenient.

2. The offences fell within harm category 1 of the Sentencing Council’s Definitive Guideline because they involved penile penetration of the victim’s vagina and mouth. They fell within culpability category A because of the significant disparity in age between the offender and his 16-year-old foster daughter. The applicable starting point for a single offence was therefore six years’ imprisonment, with a range of four to ten years.

3. The Recorder had erred by moving the offending to culpability category B. The court stressed that there were four counts, a course of offending extending for more than half a year, and the aggravating consequence that the victim had to leave her home. The offender had been entrusted with the victim’s welfare and had received safeguarding training.

4. The court took account of the offender’s previous good character, his history as a foster carer without earlier incident, his remorse, the impact on his blameless family members, his report to the police, and full credit for his guilty pleas. Those matters did not justify the suspended terms imposed.

5. The proper sentence after full credit for the pleas was four years’ imprisonment. Allowing for time already served under the original sentence, the court quashed the sentences on counts 1 to 4 and substituted concurrent terms of three years and ten months. The concurrent six-month sentence for the notification offence remained unchanged.

• Court of Appeal (Criminal Division): On an Attorney General reference under section 36 of the Criminal Justice Act 1988, the court granted leave, held the sexual-offence sentences unduly lenient, quashed them, and substituted concurrent terms of three years and ten months.
• Crown Court at Worcester: On 12 September 2017, the Recorder imposed concurrent suspended terms of two years for four sexual offences and a concurrent suspended term of six months for the notification offence. No citation for that decision was stated.