Smith v R

When an offender is sentenced for historical offences committed under 18, the court must apply the child sentencing approach. Passage of time and subsequent adulthood do not increase culpability at the time of offending or justify treating the offender as an adult offender. The court should identify the disposals historically available at each relevant age and use the sentence for comparable child offending as an important comparator. Any reduction from an adult sentence is non-mechanical; emotional and developmental age and maturity matter at least as much as chronological age. Where offending begins in childhood and continues into later adolescence, the later sentence may reflect the earlier offending, with earlier offences ordinarily concurrent. Offences that would not have attracted custody alone should not increase the final sentence as if they independently warranted imprisonment.

The appellant was convicted at Liverpool Crown Court in November 2023 of 12 indecent assaults contrary to s.14 of the Sexual Offences Act 1956. The offences were committed against two girls when the appellant was aged between 10 and 17. On 18 December 2023 he received a total sentence of seven years’ imprisonment.

He appealed sentence, alleging failure to apply the child sentencing guideline, insufficient reductions for age and personal characteristics, and failure to apply totality when consecutive sentences were imposed. The central issue was how to sentence an adult for historical sexual offences committed as a child, including offending which began in childhood and continued into later adolescence.

Appeal allowed in part. The court applied the principles in Ahmed [2023] EWCA Crim 281 to historical sexual offending committed when the offender was under 18.

1. The sentencing court must apply the child sentencing approach even where the offender is an adult at sentence and many years have passed. The reduced culpability attached to the offender’s age at the time of offending remains relevant. Section 59(1) of the Sentencing Code requires the Children guideline to be followed, subject only to the stated rare interests-of-justice exception.
2. In every such case, the prosecution should provide detailed information about the sentences historically available to children of the relevant ages. For offending committed at ages 10 to 14, a youth court would probably have imposed a referral order rather than custody. The three-year consecutive sentence for the offences against C1 was therefore wrong in principle.
3. The later offending, committed when the appellant was aged 17, was sufficiently serious that detention under s.91 of the PCC(S)A 2000 would have been imposed as a sentence of last resort. The four-year sentence on Count 11, together with the concurrent two-year sentences on Counts 9, 10 and 12, fell within the child-sentencing guidance and was upheld.
4. Where offending begins at a young age and continues over several years, the sentence for the later offending may take the earlier offending into account. Earlier offences should ordinarily attract concurrent sentences. Applying that approach, the court quashed the consecutive element and replaced the sentences on Counts 1 to 8 with four months’ imprisonment on each count, concurrent with Count 11.

The sentences on Counts 9, 10 and 12 remained two years concurrent. Count 11 remained the lead sentence at four years. The total sentence was reduced to four years’ imprisonment.

1. Court of Appeal (Criminal Division): On appeal from sentence, the court allowed the appeal to the extent of reducing the total sentence to four years’ imprisonment: [2024] EWCA Crim 1183.
2. Liverpool Crown Court: The appellant was convicted of 12 offences and sentenced to a total of seven years’ imprisonment.