McKeown, R v

Where an offender committed offences as a child but is sentenced after passing significant age thresholds, the court should begin with the sentence likely to have been imposed at the time of the offending. It may increase that starting point to reflect the purposes of sentencing an adult. However, it will rarely be appropriate to exceed the maximum sentence available when the offence was committed.

For a continuing course of offending, the comparison may properly be made by asking what sentence would have been imposed had all offences been sentenced together when the offender was at the relevant age. The resulting sentence must remain just and proportionate to the offending as a whole.

The appellant pleaded guilty in the Crown Court at Bolton to eight offences of sexual assault of a child under 13 and one offence of causing or inciting a child under 13 to engage in sexual activity. He was aged between 11 and 16 when the offences were committed.

On 6 March 2020, the Recorder imposed a total of six years’ imprisonment. The appellant appealed against sentence, contending that insufficient weight had been given to his age during the offending and to delay. The central issue was how the Guideline on Sentencing Children and Young People applied where an offender had crossed significant age thresholds before sentence.

1. Appeal allowed. The court quashed the total sentence of six years’ imprisonment and substituted concurrent sentences of two years’ imprisonment on counts 7, 8 and 9, with no separate penalty on counts 1 to 6. The total sentence was therefore two years’ immediate imprisonment.

2. Paragraphs 6.1 to 6.3 of the Guideline on Sentencing Children and Young People applied because the appellant had passed the significant age thresholds of 12, 15 and 18. The correct starting point was the sentence likely to have been imposed when the offences were committed. For this continuing series of offences, the appropriate comparison was the sentence that would have been imposed if all nine offences had been sentenced together when he was 16.

3. At that age, the maximum available aggregate detention and training order was 24 months. Taking account of the seriousness and persistence of the offending, but also the 25 per cent credit for guilty pleas, the likely sentence was 18 months. That was the proper starting point under paragraph 6.2.

4. The purposes of sentencing adult offenders justified an increase from that starting point. Nevertheless, paragraph 6.3 made a sentence at or near the former maximum appropriate only in suitable cases and made exceeding it rare. This was not one of the rare cases in which the 24-month maximum should be exceeded.

5. The substituted sentence was not suspended. Although some factors favoured suspension, immediate custody was required to achieve appropriate punishment. The statutory surcharge did not apply because of the dates of the offences.

• Court of Appeal (Criminal Division): By judgment dated 9 September 2020, [2020] EWCA Crim 1386, allowed the appeal against sentence, quashed the six-year total, and substituted a total sentence of two years’ immediate imprisonment.
• Crown Court at Bolton: On 6 March 2020, imposed a total sentence of six years’ imprisonment following guilty pleas to nine sexual offences.