R v Keith Edun

For an offence of intentionally encouraging or assisting crime under Serious Crime Act 2007, sentence must reflect the gravity and potential scale of the anticipated substantive offence. The inchoate character of the offence requires an adjustment, but that adjustment may be minimal where the offender gives real-time encouragement of an actual rape and is close to secondary participation.

Extreme youth can make the guideline factor of particular vulnerability so exceptional that rape of a child falls within Category 1 harm. The totality exercise must also give proper weight to distinct concurrent offending, including conduct that obstructed the investigation. An appellate court may correct an unduly lenient categorisation despite the prosecution having advanced that categorisation below, where doing so is not unfair.

The Attorney General referred the offender's sentence under section 36 of the Criminal Justice Act 1988. At the Crown Court at Croydon, the offender pleaded guilty to two offences of intentionally encouraging or assisting crime, offences concerning indecent images of children, and perverting the course of justice.

The lead offence concerned real-time messages encouraging a father to rape his two-week-old daughter. The sentencing judge imposed an extended sentence of 21 years and six months, comprising 13 years and six months' custody and an eight-year extended licence period. The Attorney General contended that the lead offence should have been categorised as Category 1A, rather than Category 2A, and that the sentence did not adequately reflect the remaining offending.

1. The reference was allowed. The court quashed the sentence on count 2 and substituted an extended sentence of 16 years and two months' custody with an eight-year extended licence period, making a total extended sentence of 24 years and two months.
2. The sentencing judge had correctly approached the offence under section 44 of the Serious Crime Act 2007 by reference to the guideline for the substantive offence encouraged. Although the offender was not the rapist, the inchoate nature of the offence required little, if any, reduction. He encouraged the father in real time to rape a child whom he knew to be the father's two-week-old daughter. Applying Hendron [2024] EWCA Crim 33, he was close to being a secondary party.
3. The rape was necessarily Category 1A. The child's age made her vulnerability exceptionally extreme. The court agreed with the approach in AZ [2022] EWCA Crim 620, in which extreme youth elevated the relevant vulnerability factor from Category 2 to Category 1. The appropriate notional starting point for count 2 alone was about 16 years.
4. Totality required a further upward adjustment. The other counts, particularly the deliberate deletion of the messaging application and consequent obstruction of child safeguarding and investigation, represented separate criminality. Their weight was not nearly cancelled out by the limited adjustment for the inchoate nature of count 2. A notional sentence of at least 18 years was required before credit for the late guilty plea; a 10 per cent reduction produced approximately 16 years and two months.
5. The original sentence was therefore unduly lenient. It was not unfair to correct the categorisation error although the prosecution had advanced Category 2A before the sentencing judge.

• Court of Appeal (Criminal Division) — on the Attorney General's reference, allowed the reference and increased the sentence: [2025] EWCA Crim 735.
• Crown Court at Croydon — on 14 February 2025, imposed an extended sentence of 21 years and six months, comprising 13 years and six months' custody and an eight-year extended licence period.