202501950 A5 - [2025] EWCA Crim 1047

We acknowledge at the outset the great experience and expertise of the Recorder of Sheffield and that his driving motivation in this case was the potential rehabilitation of the Offender. That was without question an important and humane factor to be taken into account when approaching what was on any view a difficult and sensitive sentencing exercise. There is a question at the heart of this reference which is easy to state but not at all easy to resolve: was this offending by this Offender at his age and immaturity and with his psychological and personality issues so serious that only an immediate custodial sentence could properly be imposed?

Some things are not in doubt. First, the custody threshold was clearly passed. Second, quite apart from being only 16 at the time, the Offender was both immature and ill-equipped for his chronological age, as set out in detail in the PSR and the other reports. Third, the Recorder has not omitted any material feature of the case in his assessment. Fourth, the Recorder was fully conscious of his power to impose an immediate custodial sentence of significant length. Fifth, the Recorder went to considerable lengths (as we have set out above) to explain his thinking. Furthermore, although when viewed in isolation, his assertion that “a three year community order is the right course of action” seems lacking in support, there can be no reasonable doubt that his assertion is the product of the various considerations he had previously set out seen in the context that the principal aim of the youth justice system is to prevent offending and to pursue the welfare of an Offender by rehabilitation.

Even taking these uncontroversial matters into account, we are driven to the conclusion that the Recorder was wrong to impose a non-custodial sentence in the circumstances of this case. There are a number of reasons which, cumulatively, drive us to this conclusion.

The first and most important reason is the scale of the offending for which the Offender fell to be sentenced. The offences to which he pleaded guilty represented a persistent and escalating sequence of serious sexual offending. The Offender had 165 category B and 195 category C images on his phone. Some were not images of V but many were. There were then three serious contact sexual offences, culminating in an attempted rape that came close to penetrative accomplishment. The offending occurred in the context of a significant disparity in age between the Offender and the very young and particularly vulnerable V. It involved the distribution of indecent photographs of V falling within category B. All this has caused (at least) significant psychological harm for V. The seriousness of the offending receives some measure of indication from the Recorder’s assessment that the appropriate sentence for an adult after a trial would have been at least 10 years and in all likelihood 12 years’ imprisonment. That is by no means determinative: as the Recorder rightly emphasised, the approach to sentencing young persons under the Guideline for sentencing children and young people for sexual offences is different. But we endorse the view expressed by the Recorder that, even on that basis, an appropriate custodial sentence had he not decided upon a non-custodial disposition would have been one of 3 ½ years. The fact that a custodial sentence of that length would have been appropriate for this Offender and these offences had the Recorder not been persuaded that a non-custodial sentence was appropriate is itself a clear indication that the sentences imposed by the Recorder were lenient to a marked degree.

Second, we are persuaded that the Recorder’s approach to the question of coercion was not justified by the materials he had available to him. We accept without reservation that participation in offending due to coercion may be a mitigating factor. We have noted the successive references to coercion at [37], [38], [39] and [40] above. The Recorder progressed from referring to “a level of coercion”, which was entirely justifiable on the materials he had available to him, to the assertion that the Offender being “coerced and in effect forced” to do as he did, which in our judgment was not warranted. In our judgment, the Recorder’s approach was over-generous to the Offender who engaged in this course of conduct over a protracted period. The Recorder appeared to attribute some or all of the offending to impulsivity attributable to his ADHD: see [38] above. That ignored the persistence of the conduct and the fact that impulsivity was expressly excluded by Dr Vandenabeele’s evidence: see [27], [28] and [29] above. Although the Offender’s poor interpersonal skills and vulnerability were a factor in his offending they do not provide a full explanation for it: see [24] and [29] above.

Third, and connected to the second point, the Offender’s residual responsibility when all is said and done remained significant. He confirmed repeatedly that he knew that what he was doing was wrong and retained responsibility for it: see [22], [28] and [33] above.

Fourth, he was assessed as still posing a high risk of causing future harm to young females: see [34] above. This assessment was entirely consistent with his (sometimes) acknowledged longstanding sexual interest in children.

Fifth, the Recorder was right to accept that there was a measure of grooming (as normally understood) as the Offender progressed from photographing to contact sexual offences.

For these reasons, we conclude that the Recorder was wrong to impose a non-custodial sentence upon this Offender.

In our judgment, notwithstanding the Recorder’s assertion that the sentence he was imposing was not lenient, we are persuaded that it was not merely lenient but unduly lenient. We consider that his assessment that (if a custodial sentence was to be imposed) a period of 3 ½ years was appropriate. Neither Mr Jarvis nor Mr Stables sought to persuade us that it was not and, indeed, in our judgment it could well have been somewhat longer.

At this point, a number of technical issues concerning the powers of the committing and sentencing powers Courts arise.

We start with Counts 5 and 6. As we have said, the Offender was 18 when he pleaded guilty to those offences. A community order was therefore technically available to the Crown Court. However, given our conclusion that a custodial sentence of 3 ½ years is appropriate, we quash the sentence imposed by the Crown Court and substitute on each Count a sentence of 3 ½ years detention in a young Offender institution pursuant to section 262 of the Sentencing Act 2020 (“the Sentencing Code”).

Turning to Charge 1, the Court Record says that it was committed to the Crown Court pursuant to section 4A of the Powers of Criminal Courts (Sentencing) Act 2000. That section was repealed by the Sentencing Code. The offence should have been committed pursuant to section 16 of the Sentencing Code. As the youth court had power to commit the offence for sentence pursuant to section 16 of the Sentencing Code, the error does not affect the validity of the committal. However, a Community Order was not an available sentence before the Crown Court because it is only available for those who are 18 on conviction and, as we have said, the Offender was only 17 when he pleaded guilty. The sentence on Charge 1 therefore needs to be adjusted in any event to make the sentence imposed lawful.

Given our conclusion that a non-custodial disposition was inappropriate, and because in our judgment a detention and training order is not suitable, it would be open to this Court to impose a sentence of detention pursuant to section 250 of the Sentencing Code. Alternatively, it is open to this Court to impose no separate penalty.

The position with regard to Charges 2, 4 and 5 is different. The three charges relating to taking and distributing photographs were recorded by the Magistrates Court as being committed pursuant to section 4A of the Powers of Criminal Courts (Sentencing) Act 2000. That was wrong as the appropriate section when sending these offences along with the offence of sexual assault was section 20 of the Sentencing Act 2020. Once again, the error does not invalidate the committal; but where offences are sent pursuant to section 20, the effect of section 23 of the Act is that the Crown Court may deal with the Offender in any way in which the youth court could have dealt with him. That does not detract from the fact that these charges alleged the commission of serious offences in their own right. As he was 17 when he pleaded guilty, the powers of the youth court would have included a 24 month Detention and Training Order or a Youth Rehabilitation Order but not a Community Order. The sentences passed by the Crown Court on Charges 2, 4 and 5 were therefore unlawful and require to be adjusted.

In our judgment, the simplest and most convenient way to dispose of this reference overall is:

For these reasons we give leave, quash all of the sentences imposed by the Crown Court, impose a sentence of 3 ½ years detention in a young offender institution pursuant to section 262 of the Sentencing Code, concurrent on Counts 5 and 6, and impose no separate penalty on Charges 1, 2, 4 and 5. In the light of those sentences, we direct that the correct Victim Surcharge Order is £34.