Judge failed to consider ‘welfare of child offender’ when sentencing him for sexual offences

The Criminal Appeal Court ruled that the sentencing judge erred in failing to take into account the “welfare” of the child offender and the need for the teenager’s “rehabilitation and reintegration” into society, and that she erred in deciding not to impose an extended sentence.

The Lord Justice Clerk, Lady Dorrian, sitting with Lady Paton, heard that the appellant Adam McCormick was convicted at the age of 17 of two serious sexual offences committed against two boys between the ages of 7 and 11 when he himself was 14.

The sentencing judge considered that an adult offender could well face a sentence of nine years for such offences, which was consistent with a term of 8-13 years set out in the Sentencing Guidelines for England and Wales.

The appellant was described as constituting a “moderate risk of reoffending”, having a supportive family, would be released under licence in due course and would be subject to the notification requirements of the Sexual Offences Act 2003.

To reflect the age and immaturity of the appellant a substantial reduction from the starting point of nine years was required, so the judge sentenced him to six years detention, but she did not consider that an extended sentence was required.

However, counsel for the appellant submitted that the trial judge had erred in commencing with the sentence which might be appropriate for an adult offender and should instead have started by looking at what was an appropriate sentence for someone of the appellant’s age.

It was argued that when sentencing a child it was necessary – while taking into account the requirements for retribution, deterrence and the need to protect the public – also to take into account as a primary consideration the “welfare of the child” and the “desirability of reintegration into society”, but that the judge failed to do so.

Counsel also submitted that the whole circumstances and the terms of the criminal justice social work report were such that the trial judge also erred in not imposing an extended sentence.

The appeal judges observed that while it was “not illegitimate” in sentencing a child to consider the sentence which an adult offender might attract, the court must also have regard to the “best interests of that child as a primary consideration” and the” desirability of the child’s reintegration into society”.

Delivering the opinion of the court, the Lord Justice Clerk said: “Other than to the extent that his youth made him less blameworthy than an adult, it is not clear that the trial judge had in mind any of these important factors – the welfare of the child offender, the need to facilitate rehabilitation and reintegration into society. It does not seem that she considered these factors at all, merely allowing a discount from an appropriate adult sentence to allow for immaturity. In that regard we consider that she erred.

“Moreover, we are also satisfied that she erred in concluding that this was not a case where an extended sentence was necessary. Her reasons for so concluding were the assessment of a moderate risk of re-offending, a supportive family background, and the prospect of gaining education when in custody.

“She also noted as protective factors that on release the appellant will be subject to licence conditions and subject to registration under the Sex Offenders Act. However, as the trial judge also noted, the criminal justice social work report also highlighted the appellant’s denial of the offences as a considerable concern, and one which limited the scope of offence focussed work which could reduce risk.

“In our view this is a significant factor in determining the extent to which an extended sentence might be necessary to protect the public from serious harm. Such persistent denial in these circumstances hampers the assessment of risk, and means that an assessment of risk as ‘moderate’ requires to be viewed with some caution, even where other protective factors are in place.

“We note that the criminal justice social work report states that the appellant ‘requires a moderate level of supervision in order to assist him to desist from further acts of sexual behaviour’. He has a lack of insight into his behaviour, which is troubling.”

Lady Dorrian added: “Against the whole background of the terms of that report allied to the very serious nature of the offences, committed by one so young, and giving due respect to the discretion of the trial judge, we are unable to agree that this is a case in which an extended sentence was not necessary for the protection of the public.

“In selecting the appropriate custodial term of an extended sentence, the court has had regard to the fact that the extension period is specifically designed to reduce risk. The overall sentence requires to be considered. In the circumstances we consider that an appropriate sentence would be an extended sentence consisting of a custodial term of five years with an extension period of three years.”