R v ATD

When sentencing an adult for offences committed while under 18, the court must apply the Children Guideline unless that would conflict with the interests of justice. It must begin with the sentence likely to have been imposed shortly after the offending, treating the offender’s age at that time as central. The adult guideline is relevant only after the custody threshold is crossed and no other sentence is appropriate. A suspended sentence with rigorous requirements may replicate a youth sentence where a youth rehabilitation order is no longer available. Delay in reporting familial sexual abuse does not, without more, establish that threats caused the delay.

After a trial at the Crown Court at Luton, the offender was convicted of rape of a child under 13 and three offences of causing or inciting a child to engage in sexual activity. He received concurrent suspended sentences with rehabilitative and unpaid-work requirements. The Solicitor General sought leave under section 36 of the Criminal Justice Act 1988, arguing that the sentencing judge had wrongly assessed threats and psychological harm, failed to apply the adult guideline, and imposed insufficient uplift for the additional offences. The central issue was whether the sentences were unduly lenient when the offender had been 15 at the time of offending.

Leave to refer refused. The sentences were not unduly lenient.

1. Applicable threshold. The court applied the formulation in Attorney General Reference No 4 of 1989 [1990] 1 WLR 41: a sentence is unduly lenient only if it falls outside the range reasonably open to a judge who has considered all relevant factors.
2. Child sentencing framework. The principles in Ahmed and others [2023] EWCA Crim 281 required the court to apply the Children Guideline because the offending occurred while the offender was 15. The starting point was the sentence likely to have been imposed shortly after the offences. The passage of time did not itself increase culpability, although later events could demonstrate greater or lesser culpability or harm.
3. Custody and the adult guideline. The 2017 sexual-offences guideline placed the offending in a category where custody or an enhanced youth rehabilitation order could be justified. The court accepted that an enhanced youth rehabilitation order would have been available and that the offence did not require immediate custody. The adult guideline therefore did not arise. The statutory sequence in the Sentencing Code permitted consultation of the adult guideline only after the custody threshold had been crossed and no other sentence was appropriate.
4. Factual findings. The sentencing judge was entitled to reject the alleged threats after hearing the evidence. Delay in reporting within a family relationship had many possible explanations. The judge was also entitled, applying Forbes [2016] EWCA Crim 1388, to find that the psychological harm was not severe in the legally relevant sense. The court rejected further suggested aggravation: there was no abuse of trust, the number of convictions did not significantly aggravate the offending, and the location could not have materially affected the assessment.
5. Sentence imposed. Because a youth rehabilitation order was unavailable in 2023, concurrent suspended terms with rigorous requirements were a permissible pragmatic means of replicating the likely youth sentencing outcome. The court noted that child sentencing is individualised and child-focused, and that the culpability assumptions applicable to an adult committing serious sexual abuse do not automatically apply to a 15-year-old.

• Court of Appeal (Criminal Division): On a reference by the Solicitor General under section 36 of the Criminal Justice Act 1988, leave to refer the sentences was refused. The sentences were held not to be unduly lenient: [2023] EWCA Crim 1536.
• Crown Court at Luton: The offender was convicted and sentenced to concurrent suspended terms with rehabilitative, unpaid-work and other requirements. The Court of Appeal upheld the sentencing approach.