Hopkins, R. v

A sentencing guideline requires an evaluative judgment about the appropriate culpability category; it is not to be interpreted as though it were a statute. A significant age disparity may place offending in a higher culpability category, but where the disparity only just meets that description it must be reflected when selecting the sentence within the guideline range.

The court must also assess the actual sexual activity proved. Kissing and touching a child over clothing was at the lowest level of sexual activity. A guilty plea entered at the pre-trial preparation hearing did not merit full credit where the defendant could earlier have advanced an articulated basis of plea. A promptly committed breach of a suspended sentence order justified full activation, but did not justify a manifestly excessive sentence for the new offence.

The appellant pleaded guilty in the Crown Court at Wood Green to sexual activity with a child contrary to section 9(1) of the Sexual Offences Act 2003. The agreed basis was kissing and touching the thigh of a 13-year-old complainant over her clothing. The sentencing judge treated the offending as category 3A because of a significant age disparity, imposed two years and three months’ detention, and activated in full a 12-week suspended sentence order imposed five days before the offence.

On appeal against sentence, the appellant challenged the categorisation of culpability, the length of the sentence, and the limited credit allowed for the guilty plea. The central issue was whether the resulting sentence was manifestly excessive.

1. Appeal allowed. The sentence of two years and three months’ detention was manifestly excessive. It was quashed and replaced by 12 weeks’ detention, consecutive to the fully activated 12-week suspended sentence.

2. The Sentencing Council guideline was not to be construed as a statute. The sentencing judge had to make an evaluative judgment about the applicable category. It was open to treat the difference between a 13-year-old and a 19-year-old as a significant age disparity, but the disparity only just met that description. That qualification had to be reflected in selecting the pre-credit sentence within the category 3A range.

3. The agreed sexual activity was kissing and touching the complainant’s thigh over clothing. Although section 9(1) of the Sexual Offences Act 2003 applied irrespective of the child’s willingness, because a 13-year-old could not give informed consent, the activity itself was at the lowest level. This was a further reason why a sentence near the top of the range could not be justified.

4. Full guilty-plea credit was not warranted. Before the indictment was amended, the appellant could have pleaded on an articulated basis or openly indicated willingness to do so. However, even on the alternative calculation suggested by the sentencing judge’s stated credit, the sentence was still manifestly excessive.

5. The new offence might not itself have crossed the custody threshold. But it was committed five days after the suspended sentence order, before any rehabilitation requirement had been completed. Full activation was therefore inevitable and a non-custodial sentence for the new offence was not a realistic option. The substituted term reduced the notification period under Part 2 of the Sexual Offences Act 2003 to seven years.

• Court of Appeal (Criminal Division): Allowed the appeal against sentence in R v Hopkins, [2018] EWCA Crim 353, quashed the 27-month term and substituted 12 weeks’ detention consecutive to the activated suspended sentence.

• Crown Court at Wood Green: On 10 November 2017, imposed two years and three months’ detention for an offence under section 9(1) of the Sexual Offences Act 2003, and activated in full a 12-week suspended sentence order.