QUESTION: When is an old Guideline still a current Guideline?
ANSWER: When sentencing a youth
Case: R v Birley: 6th August 2015 Court of Appeal, Lady Justice Hallett – Citation to follow
Defendant Sentenced at the age of 67 for offences of historic Incest and Indecent Assault on his younger sister when he was 14/15 and she was 13/14 approximately 53 years ago. They were 15 months apart in age.
The Defendant and his sister were the oldest of 4 siblings who lived with their parents in a 2 room apartment in North London in the early 1960’s. The whole family slept in a single room and the children would wake up and witness their parents regularly having sex.
Over a 6-month period, when he was 14 and she was 13, the defendant began to experiment with his sister and digitally penetrated her vagina on numerous occasions. That stopped when they moved house and she was given her own room.
On a single occasion just after her 14th birthday when the defendant was 15 he went into her room and had vaginal intercourse with her, without ejaculation and then gave her a £1 note. There were no further incidents after that.
For the next 53 years, he went onto live a blameless and fruitful life. He had a successful marriage, 4 children, 5 grandchildren and worked solidly throughout including a period as a Special Constable.
Significantly he also financially supported the victim at various points in her life, took her on holidays with his family, and at one point, she asked him to take her 18 year old daughter under his wing when she was going off the rails. He did so, housed her and looked after her for years. She became one of his greatest supporters at sentence.
In 2008 when the victim reached 60, she confronted the defendant about their past using a hidden tape recorder. He made partial admissions and apologised.
It was only in 2013 that she went to the Police. The Defendant eventually pleaded in 2015 to Incest and 2 Specimen Indecent Assaults (having originally been charged with Rape)
The Sentencing Judge looked at the current Sexual Offences Definitive Guideline applicable to sentences after 1st April 2014 and using the equivalent offence of Sexual Activity with a child family member (S.25 SOA 2003) he found this to be a 1B offence with a starting point of 3½ years with a range of 2½ to 5 years custody. He then significantly reduced it to take account that he was dealing with a then 15 year-old child and unfortunately passed a sentence of 15 months immediate custody for the Incest with 8 months concurrent for the Indecent Assaults
On appeal the Court of Appeal found that the judge was wrong to have used the current guideline at all. The current definitive guideline specifically states, on page 7, that it is only applicable to offenders aged 18 and older.
Page 151 of the same guideline states that, “Definitive Guidelines for the sentencing of offenders under 18 years old are not included.
When Sentencing offenders under 18, a Court must in particular:
- Follow the definitive guideline Overarching Principles-Sentencing Youths
And have regard to:
- The principal aim of the youth justice system (to prevent offending by children and young people) and
- The welfare of the young offender”
In the above case, the Court of Appeal specifically interpreted that to mean that the previous guideline i.e. the Sentencing Guidelines Council Sexual Offences Act 2003 Definitive Guideline for offenders sentenced after 14th May 2007 has only been superseded by the 2014 guidelines as far as adults are concerned, but is still in force as far as Sentencing Young Offenders.
Part 7 of the previous guideline (unlike the current one) has specific starting points and ranges of sentences for various sexual offences committed by youths. In Mr Birley’s case the starting point for the equivalent offence of penetrative sexual intercourse with a child family member (Max 14 years for an adult, but 5 years for a child) is a community order absent aggravating features. The Court of Appeal quashed his sentence of imprisonment and replaced it with a 3 month community order with a condition of 7 days residence due to the time spent in custody prior to appeal.
The Court drew no distinction as to whether a young offender was being sentenced for an historic or current offence. If a defendant is being sentenced for a sexual offence, and they are 17 or younger, they must be sentenced according to the previous guidelines.