W & Anor, R. v

When sentencing an adult for historic sexual offending committed while the offender was young, the court must assess age and immaturity as matters going to culpability. It must not attempt to reconstruct the sentence that would have been imposed at the time of the offences. The Youth Guidelines are generally inapplicable because the offender is no longer a youth. Their relevance is confined to the significance of immaturity; their wider objectives concerning rehabilitation and the effects of custody do not justify a full youth reduction. In serious multi-victim offending, the adult starting point must reflect the cumulative gravity of the sustained conduct before an appropriate reduction for youth is made.

The Attorney General referred, under section 36 of the Criminal Justice Act 1988, sentences imposed on W and J following their convictions at Cardiff Crown Court for historic rape, attempted rape and indecent assault offences. The offending involved repeated sexual abuse of two young girls over an extended period, including rapes committed together.

On 14 November 2017, each offender received concurrent sentences totalling five years’ imprisonment. The Attorney General contended that the sentences were unduly lenient, particularly given the repeated rapes, the age and vulnerability of the victims, the offenders’ joint conduct, and the enduring harm. The central issue was the proper effect of the offenders’ youth and immaturity at the time of historic offending when they were sentenced as adults.

1. The court granted leave and held that the five-year sentences for rape were unduly lenient. It quashed the rape sentences and substituted ten years’ imprisonment on each rape count. The sentences for attempted rape and indecent assault were unaffected.

2. The sentencing judge had been entitled to use category 2A of the guideline for rape of a child under 13 as a starting point. However, the total adult starting point had materially understated the aggregate seriousness. There were two very young victims, repeated and relentless rape, joint offending that reinforced each offender’s criminality, ejaculation, severe lasting harm, and a sustained course properly characterised as a campaign of rape. Taken together with the other offending, the adult starting point should have been at least 20 years and potentially higher.

3. Following R v Forbes & others [2016] 2 Cr App R (S) 472, the court must not ask what sentence would have been imposed when the offences were committed. Youth and immaturity remain relevant because they affect culpability. The Youth Guidelines do not otherwise generally apply where the offender is now an adult: their provisions concerning a young person’s opportunity for reform and the effect of custody do not carry over.

4. The offenders’ youth, immaturity, disadvantaged domestic circumstances and personal backgrounds justified a substantial reduction. On the facts, the correct reduction from the adult starting point was 50 per cent, not the reduction adopted below. Ten years on each rape count was therefore the proper substituted sentence.

• Court of Appeal (Criminal Division) — On an Attorney General’s reference under section 36 of the Criminal Justice Act 1988, the court granted leave, found the rape sentences unduly lenient, and substituted ten-year terms: [2018] EWCA Crim 1004.

• Crown Court at Cardiff — The offenders were convicted on 4 October 2017 and, on 14 November 2017, were each sentenced to concurrent terms totalling five years’ imprisonment.