JM, R v

When sentencing a historic sexual offence, the court should identify the modern equivalent offence and make measured reference to its guideline. It must adjust the resulting starting point to reflect the lower maximum sentence for the offence of conviction. A historic limit on the sentence available for a child offender does not replace that statutory maximum.

The offender’s youth at the time of offending may substantially reduce culpability. A custodial term may nevertheless be suspended where exceptional circumstances, properly understood as circumstances out of the ordinary, are established.

The Attorney General referred as unduly lenient a sentence imposed at Liverpool Crown Court on JM, who had pleaded guilty to indecent assault on a male contrary to section 15(1) of the Sexual Offences Act 1956.

JM was 14 when he sexually assaulted his two-and-a-half-year-old nephew while babysitting him. The offence would now amount to rape of a child under 13 contrary to section 5 of the Sexual Offences Act 2003. The Crown Court imposed a three-year community order with supervision.

The central issue was whether that sentence was unlawfully and unduly lenient, and, if so, what sentence properly reflected both the seriousness of the offence and JM’s youth and exceptional mitigation.

1. The Attorney General’s reference was allowed. The Crown Court had wrongly proceeded on the basis that the maximum available sentence was three months’ detention. That error produced an unlawful and unduly lenient community order.

2. The court applied the staged approach in R v Forbes (Stephen John) [2016] EWCA Crim 1388 and R v L [2017] EWCA Crim 43. The modern equivalent was rape of a child under 13 under section 5 of the Sexual Offences Act 2003. Measured reference to that guideline was required, but the life maximum for the modern offence had to be adjusted to reflect the ten-year maximum for the section 15(1) index offence under the Sexual Offences Act 1956.

3. The correct categorisation was category 2 harm and category B culpability. The victim’s extreme youth made him particularly vulnerable. However, a 14-year-old looking after a young relative did not amount to an abuse of trust in the guideline sense. The adjusted starting point was six years’ imprisonment.

4. The offender’s youth at the time of the offence substantially reduced his culpability. The offence was short and impulsive, although serious and committed in the child’s home. Giving full credit for the guilty plea, the appropriate custodial term was two years.

5. Under section 118 of the Powers of Criminal Courts (Sentencing) Act 2000, suspension required exceptional circumstances. They existed because this was an isolated impulsive offence committed when JM was 14; he had not reoffended, had immediately regretted it, and had repeatedly confessed it over many years. The community order was quashed and replaced with 24 months’ imprisonment, suspended for 12 months, with a 12-month supervision order.

• Court of Appeal (Criminal Division): On an Attorney General reference under section 36 of the Criminal Justice Act 1988, the court granted leave and held that the sentence was unlawful and unduly lenient. It substituted a suspended custodial sentence.
• Crown Court at Liverpool: On 15 September 2017, imposed a three-year community order with supervision following a guilty plea to indecent assault.