Ryan Bailey v R

An offence under the Sexual Offences Act 2003 section 5 is always serious. Custody may remain necessary to reflect inherent harm and to protect children and deter irresponsible risk-taking, even where the offender reasonably believed that the child was aged 16 or over. However, where a young or particularly immature defendant genuinely and reasonably held that belief, there was no exploitation, and the guideline exception clearly applies, the court must conclude that applying the guideline’s starting points and ranges would be contrary to the interests of justice, absent a countervailing reason. The court should still assess harm, culpability, aggravating and mitigating factors, using the guideline figures only as reference points. A sexual-image factor does not automatically increase culpability where the activity was reasonably believed to be lawful and involved no power imbalance or exploitation.

The appellant, aged 19, pleaded guilty in the Crown Court at Stafford to rape of a child under 13 contrary to section 5(1) of the Sexual Offences Act 2003. The prosecution accepted that he genuinely and reasonably believed the 12-year-old victim was 17, and that she had instigated the sexual communications and activity. The sentencing judge applied the Sentencing Council guideline, treated the offence as category 3A, reduced the assessment to five years, and imposed three years and four months’ detention after credit for the guilty plea.

The appeal concerned whether the guideline’s exception for a young or particularly immature defendant who reasonably believed the victim was aged 16 or over, in the absence of exploitation, applied, and what sentencing approach should follow if the guideline starting points and ranges were inappropriate.

1. Appeal allowed. The sentence of three years and four months’ detention was quashed and replaced by a special custodial sentence of two years’ detention in a Young Offender Institution, with the mandatory extended licence period of one year.
2. An offence under section 5 of the Sexual Offences Act 2003 is always serious. Custody may be necessary both to reflect the harm inherent in the offence and to protect children through deterrence. That remains so where the child appeared willing and the offender reasonably believed the child was older: Attorney General’s reference (Nos 11 and 12 of 2012) [2012] EWCA Crim 119 and R v Mascall (Jachin Joshua) [2022] EWCA Crim 483.
3. The accepted evidence showed an unusually immature, naïve and vulnerable defendant who genuinely and reasonably believed that the victim was 17. There was no power imbalance, exploitation, culpable lack of responsibility or opportunistic conduct. In those circumstances, and in the absence of any countervailing reason, the sentencing judge was bound under section 59(1) of the Sentencing Code to conclude that applying the guideline’s starting points and category ranges would be contrary to the interests of justice.
4. Following R v Mascall (Jachin Joshua) [2022] EWCA Crim 483, the court should nevertheless assess the categories of harm and culpability and the aggravating and mitigating factors to determine overall seriousness. The guideline’s starting points and ranges serve only as reference points of relative seriousness. The offence fell within harm category 3. Although recording sexual images was a culpability A factor, it did not increase culpability in the circumstances. The case could not properly be placed within category B, and there was little real culpability beyond commission of the strict-liability offence.
5. There were no aggravating factors. The appellant’s age, immaturity, mental-health difficulties, probable learning disorder, lack of previous convictions and vulnerability in custody were significant mitigation. A notional sentence of three years after trial, reduced for the guilty plea, produced a custodial term of two years.

• Court of Appeal (Criminal Division): The appeal was allowed. The sentence was quashed and substituted under [2026] EWCA Crim 741.
• Crown Court at Stafford: Following the guilty plea, the appellant was sentenced on 2 October 2025, with the sentence corrected at a slip-rule hearing on 29 October 2025, to three years and four months’ detention with a one-year extended licence period.