R v Nicole Lines

When sentencing sexual activity with a child, the guideline starting point may, in an appropriate case, be adjusted downwards before aggravating and mitigating features are considered. Guideline wording permitting upward adjustment for multiple culpability or harm features does not prohibit a downward adjustment. This is particularly so where the starting points for relevant culpability categories differ sharply. The court may give substantial weight to an offender’s vulnerability, dependent children and the consequences of delay, while recognising that sexual offending against children remains serious and that a child’s apparent willingness increases the need for protection rather than reducing it. A suspended sentence may therefore be justified in an unusual case where following the guideline would be contrary to the interests of justice.

This was a reference by the Attorney General under section 36 of the Criminal Justice Act 1988. The offender had pleaded guilty to sexual activity with a child, possession of indecent photographs of a child and drug offences. The Crown Court at Canterbury sentenced her to two years’ imprisonment, suspended for two years, with a 60-day rehabilitation activity requirement.

The Solicitor General argued that the sentence was unduly lenient. He submitted that the sentencing judge had mishandled the guideline by failing to adjust upwards for multiple culpability features and by reducing the starting point before considering aggravating and mitigating features. The central issue was whether the sentence was properly open to the judge in the unusual circumstances of the case.

1. Leave to refer refused. The sentence of two years’ imprisonment suspended for two years, with a 60-day rehabilitation activity requirement, remained in force.
2. The offences involved category 1 harm under the applicable guideline. The sentencing judge was entitled to find that several culpability A features were present, but also entitled to regard them as relatively weak examples. There was little apparent grooming, the supply of alcohol and cannabis did not appear to have been used significantly to facilitate the offending, and the age disparity was less marked than in many other cases.
3. The court rejected the argument that multiple culpability A features necessarily required an upward adjustment from the guideline starting point. It also rejected the argument that a judge cannot adjust the starting point downwards before considering aggravating and mitigating features. The wording at step two, which permitted upward adjustment for a case of particular gravity, did not prohibit a downward adjustment in an appropriate case, especially where there was a stark difference between the starting points for categories A and B culpability.
4. The judge was entitled to give substantial weight to the offender’s vulnerability and the interests of her children. The delay between her admission and her appearance before the court was an additional relevant consideration, because imprisonment would have had a more severe effect on her daughter after their reunification and settled home life.
5. The court accepted that the offences were serious and that a child who encourages a sexual relationship with an adult requires more protection, not less. The sentencing judge was nevertheless plainly aware of the seriousness and had adequately explained why following the guideline would be contrary to the interests of justice in this unusual case. A longer immediate custodial sentence was not required.

• Crown Court at Canterbury: On 13 January 2023 HHJ Lowe sentenced the offender to two years’ imprisonment suspended for two years, with a 60-day rehabilitation activity requirement.
• Court of Appeal (Criminal Division): On a reference by the Attorney General under section 36 of the Criminal Justice Act 1988, the court refused leave to refer the sentence as unduly lenient.