Re JACHIN JOSHUA MASCALL

Where an adult offender genuinely and reasonably believed that a child under 13 was aged 16 or over, the rape-of-a-child guideline may be inappropriate. The sentencing court should nevertheless use its harm, culpability and aggravating factors to assess relative seriousness, rather than begin again from first principles.

Such belief substantially reduces culpability but does not make a non-custodial sentence appropriate unless the case is truly exceptional. The court must evaluate the victim’s vulnerability, harm, the offender’s responsibility, the duration and circumstances of the encounter, checks made as to age, and aggravating features. Protection and deterrence remain important because children under 13 require protection from themselves.

The respondent, aged 19 and of good character, pleaded guilty in the Crown Court at Inner London to three offences of rape of a child under 13, contrary to section 5(1) of the Sexual Offences Act 2003. The victim was aged 12 years and 10 months. She had represented herself to the respondent as aged 20.

The prosecution ultimately accepted that the sexual activity was unforced and that the respondent genuinely believed, on reasonable grounds, that the victim was at least 16. The sentencing judge treated the case as exceptional and imposed a three-year community order.

On the Solicitor General’s reference under section 36 of the Criminal Justice Act 1988, the central issue was whether that sentence was unduly lenient and, in particular, how the rape-of-a-child sentencing guideline should be used where the offender reasonably believed that the victim was aged 16 or over.

1. The reference was allowed. The community order was unduly lenient. It was quashed and replaced by concurrent terms of 36 months’ detention in a young offender institution, imposed as part of a 48-month sentence for an offender of particular concern.

2. The Court accepted that the offender’s genuine and reasonable belief that the victim was at least 16 meant that the Sentencing Council guideline was not appropriate in its ordinary form. That did not require the sentencing court to disregard the guideline. The proper approach was to use the guideline’s harm and culpability categories, and its aggravating and mitigating factors, to assess seriousness. The starting points and category ranges remained reference points only.

3. The case was not exceptional. The victim was highly vulnerable, the harm was substantial, and the encounter was opportunistic. The offender was 19, was not shown to be markedly immature, spent at least 36 hours with the victim, made no meaningful checks about her age or claimed circumstances, used no condom, and engaged in sexual activity at night in public locations. Her apparent consent could not displace the need to protect children under 13 from themselves or the deterrent purpose of sentencing.

4. Exploitation in this context means using the victim for the offender’s sexual advantage and implies an imbalance of power. The facts showed culpable irresponsibility rather than exploitation in that strict sense. Lack of remorse was more accurately treated as the absence of mitigation than as an aggravating factor.

5. A provisional term of 60 months’ detention was reduced to 54 months to reflect Covid-19 prison and remand conditions, applying Manning [2020] EWCA Crim 592. Full credit for guilty pleas reduced it to 36 months. Because the offences were listed in Schedule 13 of the Sentencing Act 2020, section 265 required a further 12-month licence period.

• Court of Appeal (Criminal Division) — on the Solicitor General’s reference under section 36 of the Criminal Justice Act 1988, held the community order unduly lenient and substituted a custodial special sentence: [2022] EWCA Crim 483.
• Crown Court at Inner London — following guilty pleas to three counts of rape of a child under 13, imposed concurrent three-year community orders with unpaid work, rehabilitation and programme requirements.