Regina v Marcus Ong

When sentencing an adult for offending committed as a child, the court must assess culpability by the offender’s age at the date of the offence. It must nevertheless take account of the adult purposes of sentencing under the Sentencing Act 2020.

For an offender aged 15 to 17, the youth sentencing guideline permits a broad, non-mechanistic reduction from the adult custodial sentence. A sentence appeal may succeed where aggravating and mitigating features are not properly balanced, or where the total sentence is manifestly excessive. Serious sexual offending may still require immediate custody despite substantial personal mitigation.

The applicant was convicted at Birmingham Crown Court of common assault against C1 and assault by penetration against C2. Both complainants were fellow students at a residential ballet school. The sexual offence involved repeated unwanted sexual contact after C2 had told the applicant to stop.

The applicant was 16 years and 7 months old when the offences were committed. He was not sentenced until he was 19, following delay caused by trials on other counts which resulted in jury disagreement. The sentencing judge imposed two years and eight months’ detention in a young offender institution for assault by penetration, followed by three months’ consecutive detention for common assault.

On a referred application for leave to appeal against sentence, the central issues were the proper adjustment for the applicant’s youth, the balance of aggravating and mitigating factors, the need for immediate custody, and totality.

1. Appeal allowed. The total sentence of two years and 11 months’ detention in a young offender institution was manifestly excessive. The court quashed the sentences and substituted 16 months’ detention for assault by penetration and two months’ consecutive detention for common assault, making 18 months in total.

2. The sentencing judge correctly placed the sexual offence in category 3B of the applicable guideline and correctly rejected breach of trust as a culpability category A feature. The offence had serious aggravating features: it occurred in C2’s room after she had admitted the applicant out of concern for him, and he ignored her repeated requests to stop. The psychological harm, though below category 2, was high within category 3.

3. Those features were fairly balanced by substantial mitigation. The applicant had no previous convictions, had suffered serious consequences for his prospective ballet career and immigration status, was not responsible for the lengthy delay, and would serve his first custodial sentence far from home during the continuing effects of the Covid pandemic. The provisional adult sentence should therefore have returned to the two-year starting point. The judge had not adequately explained a sentence at the top of the category range despite that mitigation.

4. Following R v Limon [2022] EWCA Crim 39, and consistently with the other authorities cited, culpability remained that of a 16-year-old. The adult sentencing purposes in section 57 of the Sentencing Act 2020 remained relevant. The court properly had regard to the youth guideline’s broad indication that a sentence for a 15-to-17-year-old may fall between one half and two thirds of the adult sentence. A one-third reduction was appropriate; no greater reduction was justified.

5. Immediate custody was necessary because of the seriousness of the assault by penetration. However, totality and mitigation required a reduction in the consecutive sentence for the common assault.

• Court of Appeal (Criminal Division) — allowed the appeal against sentence and substituted a total sentence of 18 months’ detention in a young offender institution: [2022] EWCA Crim 1205.

• Crown Court at Birmingham — following convictions on 30 March 2021, imposed a total sentence of two years and 11 months’ detention in a young offender institution on 31 May 2022.