Neutral Citation Number: [2011] EWCA Crim 1332
Case No: 201100586 A1 
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
Strand
London, WC2A 2LL

Date: Tuesday, 19th April 2011

B e f o r e:

LORD JUSTICE MOORE‑BICK 

MRS JUSTICE RAFFERTY DBE 
 
MR JUSTICE EDER 
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R E G I N A 

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Mr I Harris appeared on behalf of the Appellant 
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J U D G M E N T 

1.	MRS JUSTICE RAFFERTY:  On 18th October 2010, in the Crown Court sitting at Liverpool, this 19‑year‑old appellant upon re‑arraignment pleaded guilty to sexual activity with a child and on 21st January 2011 was sentenced to three and a half years' detention in a Young Offender Institution with consequential orders.  By leave of the single judge he challenges the length of that sentence.
2.	On Boxing Day 2009 a 14‑year‑old girl, "R", went out with five friends and the quintet bought a total of four bottles of wine and a bottle of vodka, which as a group they drank.  R drank quite a part of it; one of her friends described her as being very drunk and unable to walk properly.  En route home R became detached from the other four and encountered the appellant on his pedal cycle.  He was unknown to her.  To her discomfort, he began to discuss sexual matters.  Thereafter her memory, perhaps mercifully, fails and she could remember little else until she, as she put it, came round, her jeans and knickers at her ankles and soreness in her genital area.  It was to become clear that the appellant had digitally penetrated her vaginally and then ejaculated over her.
3.	At some stage ‑‑ the chronology is a little difficult to follow with complete confidence ‑‑ he had secured the telephone number from R's telephone of R's sister and rang her.  He claimed he had found R in a troubling condition and explained where the girl was, undertaking to stay with her.  Once, however, he realised her parents were on their way, he told R's sister he would have to leave.  At some stage, and very possibly by now, R had sufficiently recovered to begin to attack him.  He told her not to tell anyone what had happened, and left.  Not long after, a passer‑by found her, put her in a cab and sent her home.
4.	Arrested and interviewed, the appellant made no answer.  Born on 21st October 1991, he was of good character.  A pre‑sentence report, recognising that custody was inevitable, explained that he minimised his behaviour and made statements about R which were derogatory in tone.  His insight was poor and he blamed her for what had happened to him.  It worried the author that he was not willing to shoulder responsibility, and he posed a high risk of serious harm to youngsters, not least because he did not seem to grasp the gravity of the situation in which he found himself.  He put before the judge two excellent character references.  
5.	This matter had been listed for trial on 18th October 2010, when a plea of guilty was tendered.  Thereafter there was an application made to vacate the plea.  
6.	The judge reminded himself of the circumstances before adding that the appellant could not reasonably have believed that R was 16 or older.  He was not dangerous, but custody was inevitable.  Aggravating the matter was that R was evidently the worse for drink, it was late at night, she was vulnerable, and the appellant must have realised that, both because of her age, and because she had become detached from her friends.  The two did not know each other, still less were they in a relationship.  Nevertheless, he had ejaculated over her afterwards.  He was at the time of sentence but 18 and, despite difficulties at school, he had worked to improve himself.  He pleaded guilty, but at a late stage and to some extent compromised by his earlier equivocation, but, that said, the victim had not had to come to court.  The judge considered the guidance offered by the Sentencing Guidelines Council and positioned this offence in the topmost category of the relevant selection since it involved digital penetration of R's vagina.  As a consequence the starting point was four years' loss of liberty, the range three to seven years.
7.	In Grounds of Appeal composed and orally advanced by Mr Harris, the complaint is that insufficient credit was extended for the guilty plea and to take account of the fact that (according to the appellant) the offending was consensual, of his age, and his troubled schooling and attempts to overcome the handicaps nature had imposed upon him.  Mr Harris has deduced a three and a half year disposition means six months had been deducted, so the discount, in percentage terms, is 12 and a half.
8.	This is not as straightforward a sentencing exercise as it might at first have seemed.  The appellant's behaviour was appalling and his progress toward his confirmed plea unattractive.  He did, however, limp toward a final position which meant that R was not obliged to come to court.  He was also still young.  Very importantly, he was of good character.  The judge made clear that some discount was to be afforded for plea, and appeared to recognise personal mitigation, but it is not clear where, if at all, that featured in the reduction he went on to make.
9.	We have deliberated with some anxiety about this case and have concluded that the interests of justice can be met by a reduction in loss of liberty.  Our first thought was that a reduction to perhaps two and a half years was appropriate.  Mr Harris addressed us then on the topic of one of the consequential orders, the sexual offenders register.  If a loss of liberty of 30 months or more is imposed the obligation to sign it will endure for life.  
10.	This appellant is, as we have already said, still very young.  As a consequence of what we propose he will until he is 28 or 29 still be obliged to sign the sexual offenders register.  A decade is quite long enough.  For that reason the appropriate course is to reduce the loss of liberty to two years and four months.  To that limited extent this appeal succeeds.