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Historic sex offences and the significance of age at the time of offending

The Court of Appeal recently considered the case of R v Limon [2022] EWCA Crim 39 which presented a raft of interesting legal points.

Briefly, the appellant received sentences totalling 4years’ imprisonment for historic sex offences namely, eight counts of indecent assault, contrary to section 14 of the Sexual Offences Act 1956 (‘the old law’) committed when he was a teenager.

In terms of the facts, the teenage appellant groomed and abused his young female victim (I’ll spare you the details) between 1993 and 1996. The appellant would have been aged between 14 and 17 at the time. His victim would have been aged between 6 and 9.

The appellant denied all allegations but was convicted at trial at the age of 41. He was of previous good character and assessed as ‘low risk’ in terms of reoffending.

The maximum sentence under ‘the old law’ was 10years’ imprisonment.

Reference was correctly made to the Sentencing Council’s guideline: Sexual Offences – Historic, often referred to as ‘Annex B’.

The defence submitted that the appellant, at the time he committed the offences, was a young person in law and therefore the maximum sentence available would have been two years’ detention in a YOI. This was because the offence of indecent assault was not considered a grave crime for sentencing purposes within the meaning of s.53 of the Children and Young Persons Act 1933. That later changed (please see below).

The sentencing judge highlighted the aggravating and mitigating features, adopting the sentencing approach we’re familiar with in ‘Annex B’ and as set out in R v H [2011] EWCA Crim 275, R v Forbes [2016] EWCA Crim 275 and R v L [2017] EWCA Crim 43   

The total sentence imposed was 4years’ immediate custody.

On appeal, it was submitted that a sentence exceeding the maximum period of detention at the time (not 2years but 12months – please see below) breached Article 7 of the European Convention in Human Rights. It was submitted that the sentence imposed was therefore wrong in principle and/or manifestly excessive.

Article 7 was closely considered in addition to related authorities, in particular, R (Uttley) v Secretary of State for the Home Department [2005] 1 Cr App R(S). 

The Court of Appeal concluded that although the appellant, as a teenager, would have been subject to a wholly different sentencing regime, there was still no breach of Article 7. This is because the sentenced received of 4years’ imprisonment fell far below the 10year maximum for indecent assault.

The Court of Appeal, however, went on to review the sentencing options available at the time the appellant committed the offences, with reference to the Sentencing Council’s definitive guideline on sentencing children and young people, often referred to as ‘the Children guideline’ which came into effect on 01/06/17, post-dating R v H, R v Bowker, R v Forbes and R v L.

It was observed that the appellant was under 18 throughout the indictment period.

Furthermore, sections 1A and 1B of the Criminal Justice Act 1982 restricted detention to a maximum period of then 12months.

The law was, however, subsequently amended. The offence of indecent assault did become a grave crime under s.53 of the 1933 Act but not until the 05/01/95.

The Crown conceded that they could not be certain if the appellant had committed offences after that date, despite the indictment period spanning from September 1993 to September 1996.

The law was further amended. With effect from 03/02/95, the maximum term of detention in a YOI was increased from 12months to 2years.

Given the transitional provisions, the Crown again conceded that the maximum total term of detention would have still been 12months in the appellant’s case.

Despite the passage of time between the offending, the conviction and the sentence, the Court of Appeal concluded they simply could not ignore the principles contained within the ‘Children’s’ guideline and deemed them relevant.

Section 59(1) of the Sentencing Code states that ‘every court must, in sentencing an offender, follow any sentencing guidelines which are relevant to the offender’s case, unless it is satisfied that it would be contrary to the interests of justice to do so’.

Reference was again made to ‘Annex B’, in particular the point about the passage of time mitigating the severity of an offence. It was also noted that youth and immaturity may also be taken into consideration as personal mitigation.

Allowing the appeal, the total sentence of 4years was quashed and substituted for reduced sentences of 12months, concurrent on each of the eight counts.

The general point made was that the sentencing judge should have taken his starting point as being – what would the likely sentence have been at the time? Also, what was the maximum sentence at the time?

Given the significantly reduced sentence, the ‘notification requirements’ were reduced from indefinitely to ten years.

Read the full transcript of this case.

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