REGINA v BAI

When sentencing a child or young person for rape of a child, the offender’s age and immaturity do not automatically require a non-custodial sentence. The court must assess the seriousness of the offence, aggravating and mitigating factors, personal mitigation and the guilty plea, then decide whether custody is the only appropriate disposal. A Youth Rehabilitation Order is available for sexual offences committed by children and young persons, but its suitability depends on the particular circumstances. Appellate courts should not reassess the weight given to mitigation where the sentencing judge considered the relevant factors and made no error of principle. General adherence to the applicable guideline may suffice even if the judge did not expressly address every step.

BAI pleaded guilty in the Crown Court at Lincoln to raping his 10-year-old cousin when he was 14. He was sentenced by HHJ Knight to 28 months’ detention under section 250 of the Sentencing Act 2020. Permission to appeal against sentence was referred to the full court.

BAI argued that the judge had failed to give adequate weight to mitigation, made unjustified factual findings and failed to follow the relevant sentencing guidelines. The central issues were whether custody was the only appropriate disposal and whether the sentencing exercise should be remade.

Appeal dismissed. The sentence was neither unlawful nor manifestly excessive.

1. The sentencing judge had considered BAI’s immaturity, previous bullying, isolation, welfare, risk of self-harm and other personal mitigation. The weight given to those matters was for the sentencing judge. The judge was required to balance mitigation against the risk of serious harm to the public and the consequences of the offending for the victim.
2. The judge was entitled to find that the rape was motivated by anger and resentment and was intended to hurt or punish the victim. Those findings were supported by the pre-sentence report and psychological assessment. The finding that BAI had warned the victim more than once not to disclose the offence was also justified.
3. The judge had generally followed the primary guideline for sentencing children and young people for sexual offences. A sentencing judge need not expressly refer to, or fully engage with, every step where the substance of the required exercise has been followed. The court nevertheless remade the exercise on the assumption that closer adherence was required and reached the same result.
4. Applying the guideline, the offence was very serious. Relevant aggravating factors included the age disparity, the victim’s vulnerability in her own home, the warnings not to disclose the offence and BAI’s post-offence conduct, although his immaturity meant that the latter should not be overstated. Good character was the principal step-two mitigation. His immaturity and isolation were taken into account as personal mitigation, reducing the adult starting point substantially.
5. A Youth Rehabilitation Order was available because it can be imposed for any sexual offence committed by a child or young person. Its availability did not make it appropriate. The seriousness of the rape, the finding that it was an act of violence, the medium risk of serious harm and the catastrophic consequences for the victim entitled the judge to conclude that custody was the only appropriate disposal.
6. The fact that BAI was 14 and immature could not automatically require a non-custodial sentence in a case involving rape of a child. The outcome depended on the particular facts.

• Court of Appeal (Criminal Division): On 24 May 2022, permission to appeal was granted and the appeal against sentence was dismissed. The court held that the sentencing judge had made no error of law or principle and that the 28-month sentence was not manifestly excessive. [2022] EWCA Crim 805
• Crown Court at Lincoln: BAI pleaded guilty to rape of a child under 13, contrary to 5(1) of the Sexual Offences Act 2003, and was sentenced to 28 months’ detention under section 250 of the Sentencing Act 2020.