| CRIME — Sentence — Young offenders — Serious specified sexual offence — Defendant under 18 convicted of specified offences — Whether “serious” if maximum sentence less than 10 years’ imprisonment because offender under 18 — Sexual Offences Act 2003, ss 11, 12, 13 — Criminal Justice Act 2003, ss 224, 225, 226, 228
R v Blythe; [2008] WLR (D) 109
CA: Rix LJ, Henriques J and Judge Stewart QC: 4 April 2008
Engaging in sexual activity in the presence of a child and causing a child to watch a sexual act were not serious specified sexual offences for the purposes of the provisions relating to dangerous offenders if the person committing the offence was under 18.
The Court of Appeal (Criminal Division) so held when allowing an appeal by the defendant, Ryan Alan Blyth, against sentences imposed on 31 August 2007 in the Crown Court at St Albans in relation to count 1, sexual assault of a child under 13, contrary to s 7 of the Sexual Offences Act 2003; count 2, engaging in sexual activity in the presence of a child, contrary to ss 11 and 13 of that Act; count 3, causing a child to watch a sexual act, contrary to ss 12 and 13 of that Act and count 4, abducting a child, for which he had been sentenced in total to detention in a young offender institution for public protection, with a minimum term of two and a half years.
HENRIQUES J, giving the judgment of the court, said that the offences alleged in counts 2 and 3 were specified sexual offences within Pt 2 of Sch 15 to the Criminal Justice Act 2003. Both those offences carried a maximum sentence of ten years’ imprisonment for an adult, whereas for a youth the maximum sentence was five years’ imprisonment. S 224(2) of that Act stated that an offence was a serious offence for the purposes of determining whether a defendant was a dangerous offender if it were a specified offence and, inter alia, it were punishable in the case of a person aged 18 or over by imprisonment for life or for a determinate period of ten years or more. The question therefore arose whether the fact that the same offence for a youth attracted a lesser sentence was immaterial because it was the offence that was considered to be serious and not the offender, or was it the case that since the offence, as committed by a youth, did not carry a possible sentence of ten years and an adult could not commit an offence contrary to s 13(1) then neither of the offences alleged in counts 2 and 3 could be a serious specified offence. Their Lordships had no doubt that the latter interpretation was correct. S 13(1) provided that a person under 18 committed an offence if he did anything which would be an offence under any of ss 9 to 12 of the Sexual Offences Act 2003 if he were aged 18, so that an adult could not commit an offence under that section. S13 created a quite separate offence, with a different sentencing regime and accordingly an offence under that section was not a serious specified offence. The sentences passed on counts 2 and 3 were therefore unlawful sentences and fell to be quashed. Since count 1 involved a serious specified offence, and counts 2 and 3 involved specified offences, it was necessary to assess the defendant’s dangerousness. Having read the relevant report their Lordships concluded that the defendant posed a significant risk to members of the public of serious harm occasioned by the commission by him of further specified offences and imposed on count 1 an extended sentence of detention of five and a half years, comprising a two and a half year custodial term and a three year extended period of licence. No separate penalty was imposed in relation to counts 2, 3 and 4 for technical reasons.
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