R v David Shotayo

In sentencing a child for a serious sexual offence, custody may be justified where penetrative activity involves pressure, a threat of violence or severe psychological harm. The sentencing court may take account of the offender’s response to previous sentences, including offending immediately after sentence and subsequent offending. A substantial difference between co-defendants’ sentences is not necessarily wrong in principle where their offending histories materially differ. Where the sentencing judge has taken time spent in local authority accommodation subject to an electronically monitored curfew into account in fixing the custodial term, the absence of a separate recorded deduction does not, on the evidence, establish manifest excessiveness.

David Shotayo, aged 16, was convicted at the Crown Court at Woolwich of rape and theft. He received a two-year detention and training order for the rape, with no separate penalty for the theft, and the judge revoked an earlier youth rehabilitation order. His co-defendant, whom the judge regarded as equally culpable for the rape, received a two-year youth rehabilitation order.

The applicant sought leave to appeal against sentence on grounds of manifest excessiveness, disparity, inadequate consideration of youth sentencing principles and failure to deduct 102 days spent in local authority accommodation subject to an electronically monitored curfew. The central issues were whether the custodial sentence was excessive or disproportionate and whether the sentencing record showed that the curfew period had been properly taken into account.

1. Leave and disposition. The court refused leave on the grounds concerning manifest excessiveness, youth sentencing principles and disparity. It granted leave on the narrow ground that the judge may have failed to deduct 102 days spent in local authority accommodation subject to an electronically monitored curfew. The appeal was nevertheless dismissed.
2. Seriousness and custody. The Sentencing Council Guideline on Sentencing Children and Young People for Sexual Offences indicated that custody could be justified for penetrative activity involving pressure, the threat of violence and/or severe psychological harm. The sentencing judge was entitled to find all those features present. The pressure and implied threat arose from the two offenders acting together and the complainant’s belief, after they failed to answer her question about a knife, that one of them carried a knife. The trial judge was also entitled to rely on the victim personal statement in finding severe psychological harm.
3. Previous offending. Although the applicant had committed the offences only one day after his first sentence, the judge could take that fact and his later offending into account when assessing his poor response to previous sentences. That assessment was relevant to the need for custody, public protection and the choice of sentence.
4. Guideline comparison and disparity. The applicant’s offence fell within Category 2A under the adult rape guideline, although even on the suggested Category 3A classification the two-year DTO was materially below half the lower end of the adult range. The different offending histories of the applicant and his co-defendant justified the different sentences despite equal culpability for the rape.
5. Curfew credit. On the sentencing materials, the court concluded that the judge must have taken the 102 days into account when selecting a 24-month DTO rather than a longer detention under Sentencing Act 2020, s 250. The court clerk’s clear note on the Digital Case System did not record a deduction, but the surrounding material showed that the period had been considered. The sentence was therefore not shown to be manifestly excessive.

• Court of Appeal (Criminal Division): The applicant sought leave to appeal against the sentence imposed by the Crown Court at Woolwich. Leave was refused on the grounds concerning manifest excessiveness, youth sentencing principles and disparity, but granted on the curfew-credit ground. The appeal was dismissed: [2024] EWCA Crim 596.