[2025] EWCA Crim 1113

the use of alcohol on V to facilitate the offence

specific targeting of a particularly vulnerable child, and

the significant disparity in age - 21 for the offender and 15 for V.

That categorisation would indicate a starting point of 5 years, with a category range of 4 to 10 years. The sole aggravating factor identified by the prosecution in their note was the commission of the offence whilst under the influence of alcohol. Mitigating factors were identified as the absence of previous convictions, the offender's remorse and his age.

First, it accepted that there was no evidence that the offender had given V alcohol, the evidence being that it was brought in by Mr Houphouet. Although on occasions the offender drank with the other offenders and the girls, "He did not bring the drink in, he did not bring the girls to the house, and this was very early in the visits ... one of the first visits ... so ... it may not be quite the same as later when it is obvious what the pattern is, and when the pattern has arisen" - the 'pattern' being the plying of the victims with alcohol by Mr Houphouet and Mr Sigiyo.

Second, that also went to the question of specific targeting of a particularly vulnerable child. It was accepted by the Crown that the judge could quite easily say that the targeting had been by Mr Houphouet in the town in selecting the victims and bringing them back to the house. The Crown pointed to the evidence that Mr Houphouet had raped V in the town on his initial meeting with her and before taking her back to the house, and that the offender "seems to be out of the loop and just seemed to be there". The Crown also accepted that the court might take the view that the offender's involvement generally was much less than that of the other two offenders, so that the judge could decide that it was not specific targeting of a particularly vulnerable victim in the sense meant by the guideline.

Third, turning to the question of significant disparity in age, counsel for the Crown accepted that it was what he called a grey area. He accepted that a disparity of 3 years (18 and 15) would not be significant within the meaning of the guideline. The judge suggested that with a 15-year-old victim "significant" disparity would be where the offender was probably mid-20s, to which counsel for the Crown replied, "Absolutely", adding that the judge could take the view that the disparity in the present case was not sufficient to put it in the category meant by the guideline.

Fourth, counsel then pointed to the gap that exists between the category range for category 1A (4 to 10 years) and category 1B (high-level community order to 2 years' custody) and said, "So whether it might even fall in that gap, or whether it is properly in the lower category, I can perfectly understand how your Honour could place it in any of these three options." Counsel then expressly assented to the suggestion by the judge that the case potentially fell towards the top of category 1B, given the aggravating factors that V was a vulnerable child and there was alcohol available and that the offender was himself under the influence of alcohol.

"You pleaded guilty at trial and so I give you 10% credit. This offence occurred 14 years ago in 2011. You had sexual intercourse with [V] who was 15. She was a vulnerable girl who had been exploited by men you were acquainted with. She willingly had sexual intercourse with you. The episode was short-lived as it was interrupted by another man who reacted in a violent manner when he saw the two of you together. The offending was not repeated and there have been no incidents since.

I have regard to the sentencing guidelines; this is category 1 as there was penetrative sexual activity. I am not persuaded there are any culpability A factors and so this is category B1 but towards the top end of that category as your victim was clearly vulnerable and you were under the influence of alcohol.

I have read the psychological report, the pre-sentence report and addendum and I had the benefit or observing you throughout the trial, including when you gave evidence. It is clear you have some issues with functioning and understanding. You face a number of difficulties and it is apparent that your level of maturity at the time was probably similar to that of the complainant but, nevertheless, she was a vulnerable and looked after child.

You have not reoffended in any way since this isolated incident. Unlike others, this was not a pattern of repeated and sustained behaviour. It seems to me that you clearly need assistance in understanding why this behaviour is so wrong. Your guilty plea is perhaps the best evidence that there is hope that you will be able with assistance to reflect upon your behaviour.

I put you in a very different category to your co-accused but this offence clearly does pass the custody threshold. Giving you appropriate credit the sentence is one of 21 months’ imprisonment. I then consider the sentencing guideline for the imposition of custodial and community sentences, and I am satisfied in your case that there is a reasonable prospect of rehabilitation. I therefore suspend that sentence for a period of two years."