[2025] EWCA Crim 1320

The Sentence of Imprisonment

Mr Hewitt, who appears for the appellant before us but did not appear in the court below, rightly makes no complaint about the 20 per cent credit afforded to the appellant for his guilty plea. He argues, however, that the judge was wrong to find severe psychological harm justifying a finding of level 2 harm. He also argues that the judge was wrong to find an abuse of trust and therefore to find raised culpability. That submission is based on the psychological evidence which, he argues, shows that the appellant's mental age was significantly lower than his chronological age at the time of the offence. He submits that the appellant was given an inappropriate level of responsibility.

Taking these submissions together, Mr Hewitt argues that the proper categorisation was a category 3B offence such that the judge should have taken a starting point of 8 years before considering the aggravating and mitigating features of the case. On that basis, he submits that the proper sentence after trial should have been 5 years and, after credit for plea, no more than 4 years' imprisonment.

Harm

The judge heard harrowing victim personal statements from both the sister and her father. The father described a very significant change in his previously happy and outgoing daughter. She had become distant and quiet. She was afraid and regularly suffered nightmares in which she relived this offence. She had become afraid to leave the house and socially withdrawn.

In her own statement, the girl also described her difficulty in sleeping. She said that she was constantly tearful, anxious and scared. She had struggled to concentrate in school and feared that her education had been affected. She had self-harmed repeatedly and lost her appetite. She had struggled socially with other children in school.

The Sentencing Guideline for offences of the rape of children under 13 gives further guidance in respect of when the court might find severe psychological harm:

"The sentence levels in this guideline take into account a basic level of psychological harm which is inherent in the nature of the offence.

The assessment of psychological harm experienced by the victim beyond this is for the sentencer. Whilst the court may be assisted by expert evidence, such evidence is not necessary for a finding of psychological harm, including severe psychological harm. A sentencer may assess that such harm has been suffered on the basis of evidence from the victim, including evidence contained in a Victim Personal Statement (VPS), or on his or her observation of the victim whilst giving evidence."

In our judgment, the judge was absolutely entitled to conclude, even without medical evidence, that this offence had caused severe psychological harm and we therefore regard the judge as entitled to find that this was a category 2 offence.

Culpability

On the issue of culpability, Mr Hewitt relies heavily on the psychological report by Dr Harry Wood. Dr Wood interviewed the appellant and administered a battery of psychological tests. He reported that the appellant had missed out on a lot of school and the associated social opportunities by reason of his chronic kidney disease. He found that the appellant did not present as intellectually impaired but that full scale IQ testing had put him in the bottom 3 per cent of the general population. He had failed his GCSEs. The appellant complained of feelings of rejection by his parents and by his stepmother, although it has to be borne in mind that the interview was conducted after his family had reported him to the police for the rape of his stepsister.

Dr Wood concluded that the appellant was emotionally immature and that he had limitations with social skills and with understanding interpersonal boundaries. Dr Wood reported that the appellant had a mental age of 12½ at the time of his examination when in fact he was 2 months shy of his 22nd birthday. It is that conclusion that is put front and centre of the submissions on this appeal. Dr Wood himself acknowledged that the appropriateness of such estimates of mental age is controversial among psychologists.

This was not, however, the only evidence that the judge had before him. First, even within Dr Wood's report, one must balance the expert's age assessment with the evidence that the appellant was a sexually active young man who understood the need for consent and that it was wrong to engage in sexual activity with a child. Indeed, Dr Wood does not suggest that the appellant did not know that what he was doing was wrong. Further, even after pleading guilty to this offence, the appellant continued to minimise his own criminality, dishonestly maintaining to Dr Wood that his stepsister had initiated the sexual activity.

Secondly, one of the people who knew the appellant best would have been his own father. It is important to observe that he and his partner had sufficient confidence in the appellant to leave him in charge of his younger half siblings. While that is not a complete answer to the argument that it was inappropriate to repose trust and confidence in the appellant by reason of his intellectual and emotional immaturity and we are cautious about the inevitable circularity of suggesting otherwise, that evidence does tend to suggest that those who knew the appellant best did not regard him as only functioning at the level of a 12-year-old boy. Indeed, this had been a long-standing arrangement that had not apparently given rise to any previous concerns. Thirdly, there was the evidence of Mr Birtles. Further, Mr Birtles' description of arrogance is reflected in a teacher's view, quoted by Dr Wood, that as a boy the appellant was controlling and arrogant. Fourthly, the appellant maintained his dishonest attempt to blame his victim for her own rape in his interview with the Probation Service for his pre-sentence report. Importantly he accepted, however, that his own actions were wrong and that he should not have behaved as he did.

Taking all of the evidence in the round, we conclude that the judge was entitled to find that, while emotionally immature and intellectually limited, the appellant fully understood that it was wrong to engage in sexual activity with an 11-year-old girl and that sexual activity must always be consensual. Whatever his limitations, he therefore knew his conduct was unlawful and wrong. Indeed, we conclude that is why the appellant lied and sought to deflect responsibility for his actions. Accordingly, the judge was entitled to reject the argument that it had been inappropriate to have expected the 19-year-old appellant to have taken care of his step-siblings while their parents were at work. The judge did not therefore err in finding that this case involved a breach of trust.

Having reached that conclusion, we are struck by the deeply unattractive way in which the appellant has variously put his case. First, he falsely tried to blame his stepsister - even after pleading guilty to rape - for initiating or encouraging sexual activity when in fact she was from start to finish an innocent victim in what happened. Secondly, he falsely sought to blame the girl's parents for leaving him in charge. In our view, the judge was right to find him solely responsible for his actions.