The Daily Mail reported today (23rd April 2014) of a boy who raped his sister about fifty times over a two year period, starting when he was aged 13 and she nine.
The details are sketchy, but it seems to have been fortnightly, only ending when the boy formed a sexual relationship with another girl.
He was sentenced to 10 years detention. The usual rules about release apply and he will have to serve 5 years in prison.
The sentencing remarks have not been released and the only thing that we have to go on (other than the facts in the Mail) is that the Judge said that had it been adult who committed the same offences then he would have got a 20 year sentence.
Despite the fact that the offences go back to 2011, the guidelines that came into force on 1st April this year are the applicable ones for an adult. The offence of rape of a child starts at page 27. However, the guidelines only apply to someone aged over 18 at the time of sentence. There are some guidelines for sentencing for under 18s but these to not apply to this offence.
In those circumstances, one is meant to turn to the Overarching Principles : Sentencing Youths guideline. This doesn’t give actual guidelines, more guidance on sentencing youths.
The Judge appeared to take the nominal sentence for an adult and halved it, so let’s start there. Approaching it without looking at the age of the boy seems to be a difficult approach, but we can try. The first thing to look at is the Category. The things to look out for are :
- Severe psychological or physical harm
- Pregnancy or STI as a consequence of offence
- Additional degradation/humiliation
- Prolonged detention /sustained incident
- Violence or threats of violence
- Forced/uninvited entry into victim’s home
- Child is particularly vulnerable due to extreme youth and/or personal circumstances
It is difficult to know which, if any, of these apply. There is no reference to ‘severe’ harm or any of the other factors in the news reports. For it to have been a 20 year sentence, the Judge must have put it in the highest category. Although it doesn’t fit neatly into the “Prolonged detention /sustained incident” it must be that this applies.
Whilst the victim was vulnerable due to the fact that it was her brother, I would say it is different to being a father or step-father. She was not showing ‘extreme’ youth in my view (aged 9 when the guidelines are for under 13s).
For that reason, I would put it into Category 2 (just) because of the repeated ‘campaign’ of abuse and the other factors.
There is then a need to look at the culpability. The two features here that may be relevant are – Breach of Trust and Grooming behaviour. Again, it is hard to say which of these apply. I would suggest that it falls into the lower culpability.
These would give a starting point of 10 years, with a range of 8-13 years. If we follow the Judge and halve the sentence, this gives a sentence of 5 years. There was a trial, so there was no credit for a plea of guilty.
The problem here is that if this is an adult, this sentence would be far too low. And given his age, 10 years is too high in my view. To my mind this is the sort of case where, actually, the guidelines go out the window. I actually think this is a case where there should be a much lower sentence, but an extended sentence, so that there is scope for supervision.
I would imagine that there will be an appeal, just because the case is so unusual. The Judge heard the trial however and it wouldn’t surprise me if the Court of Appeal defer to his judgement on the matter.
It is also an example where the guidelines don’t really help – if anything, they just make it worse (as is so often the case).