R v Khloe Simmonds

In sentencing a young and vulnerable offender, psychological harm already reflected in the applicable harm category should not generate a further uplift above the guideline starting point. Strong mitigation may require a substantial downward adjustment, particularly where the offender is immature, has no previous convictions or subsequent offending, shows remorse, has experienced delay, and has significant developmental, mental-health, substance-use or transgender-related vulnerability. The greater hardship of imprisonment for a transwoman placed in a male prison may be relevant mitigation. Guilty plea credit must reflect when the plea was first indicated in relation to the progress of the case and the trial date.

The appellant pleaded guilty in the Crown Court at Isleworth to theft and robbery offences under the Theft Act 1968. She was sentenced to six years and nine months’ imprisonment for the robbery, with no separate penalty for the theft. She appealed against sentence, contending that insufficient weight had been given to mitigation and to her guilty plea, which had been indicated before trial. The central issues were whether the provisional sentence had been wrongly increased to reflect psychological harm, whether sufficient weight had been given to her vulnerability and other mitigating factors, and whether the guilty plea discount was adequate.

The appeal was allowed. The sentence for robbery was quashed and a sentence of four years and eight months’ imprisonment was substituted. The order of no separate penalty for theft and the other orders were left undisturbed.

1. The Recorder was right that a knifepoint robbery in a person’s home required a custodial sentence measured in years. However, the increase from the eight-year starting point to nine years was unjustified. The psychological harm to the victim was the feature that placed the offence in harm category 2 rather than category 3. It did not warrant a further elevation within the category 2 range.
2. The aggravating factors, including the theft, threats, the prolonged nature and timing of the incident, and the victim’s need to leave his home, had to be reflected. However, the mitigation required a very substantial downward adjustment. Relevant matters included the appellant’s age and immaturity, lack of previous convictions and subsequent offending, remorse, delay, and extreme vulnerability arising from autism, ADHD, mental-health concerns, alcohol misuse and her status as a transwoman.
3. In R v Harris (Frederick William) (No 2000/01540/W3), the court had recognised that imprisonment could be a greater ordeal for a transwoman undergoing transition. Although the facts were not identical, being a transwoman in a male prison would make imprisonment more arduous and was a relevant mitigating circumstance.
4. The appropriate provisional sentence after adjustment for aggravating and mitigating factors was five years and six months. A 15 per cent reduction for the guilty plea was appropriate. The plea had been indicated after the first stage but three months before trial, and the timing of the indication had to be assessed in the context of the progress of the case and the trial date.

1. Court of Appeal (Criminal Division): allowed the sentence appeal, quashed the robbery sentence and substituted four years and eight months’ imprisonment.
2. Crown Court at Isleworth: imposed six years and nine months’ imprisonment for robbery following the appellant’s guilty plea; no separate penalty was imposed for theft.