[2025] EWCA Crim 1320

The Sentence

Accordingly, we conclude that the judge was right to treat this very serious offence as a category 2A rape of a child under 13, and to take a starting point of 13 years' imprisonment. The note of the sentencing remarks is not of course a transcript of everything that was said and does not capture the aggravating features identified by the judge or all of the mitigating factors that were available to this appellant. We consider that there were serious aggravating features of this offence. First, it was a sustained sexual offence that the girl estimated lasted for some 30 minutes. As well as penetrating his sister's vagina with his penis, the appellant performed oral sex on her and attempted to force her to perform oral sex on him. Secondly, this was unprotected penetrative sex. Thirdly, the appellant ejaculated. Fourthly, the offence was committed in his sister's own bed; the place in the world where she should have been safest. Fifthly, although there is no suggestion that the brother witnessed what happened and was thereby psychologically damaged, the offence was nevertheless committed when the appellant and his sister were alone in the house with an 8-year-old child.

In our view, these serious aggravating features of the case warranted a significant upward adjustment from the starting point, although the judge was then of course required to reflect the mitigating factors. It is here that the judge rightly took into account the appellant's undoubted and serious physical health condition and his emotional immaturity and intellectual limitations as mitigating features of the case. As already related the appellant suffers from chronic kidney failure. He is dependent on dialysis three times a week. As the judge observed, a prison sentence will be more difficult for this appellant than for many.

We accept that age should never be seen mechanistically as a chronological number but rather the real question is to consider the developmental and emotional age of an offender. Some further allowance was therefore appropriate to reflect the fact that this appellant was an emotionally immature 19-year-old man. Further, the appellant had no previous convictions and there was some delay in this prosecution, albeit such delay was not exceptional following the pandemic.

Taking into account the proper starting point of 13 years' imprisonment and the many serious aggravating features of this case, we consider that the judge made generous allowance for the mitigation by reducing the sentence below the category range to 10 years' imprisonment after trial. Accordingly, we reject the argument that the judge adopted a starting point that was too high and the overarching submission that a sentence of 8 years' imprisonment after credit for the late guilty plea was manifestly excessive.