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S9 & 13. Sexual activity with a child - youth

Date Updated: January 2012

Title: Sexual offences

Offence: Sexual Activity with a child (Youth only)

Legislation: Sexual Offences Act 2003 S9 & 13

Commencement Date: 01/05/2004

Mode of Trial: Grave Crime (Section 139 & Para. 43 Schedule 6 Sexual Offences Act 2003)

Statutory Limitations & Maximum Penalty: On Indictment - 5 years imprisonment
Summary Conviction - 6 months imprisonment and/or statutory maximum fine

Culpability & Harm

The sentences for public protection must be considered in all cases. They are designed to ensure that sexual offenders are not released into the community if they present a significant risk of serious harm.

The culpability of the offender will be the primary indicator of offence seriousness, and the nature of the sexual activity will provide a guide as to the seriousness of the harm caused to the victim. Other factors will include:

  • the age and degree of vulnerability of the victim - as a general indication, the younger the child, the more vulnerable he or she is likely to be, although older children may also suffer serious and long-term psychological damage as a result of sexual abuse;
  • the age gap between the child and the offender;
  • the youth and immaturity of the offender; and
  • except where it is inherent in an offence, any breach of trust arising from a family relationship between the child and the offender, or from the offender's professional or other responsibility for the child's welfare, will make an offence more serious.

Aggravating & Mitigating Factors

Aggravating

  • Background of intimidation or coercion
  • Use of drugs, alcohol or other substance to facilitate the offence
  • Threats to prevent victim reporting the incident
  • Abduction or detention
  • Offender aware that he or she is suffering from a sexually transmitted infection

Mitigating

  • Relationship of genuine affection
  • Youth and immaturity of offender

Relevant Sentencing Council Guideline (if any)

  1. Guidelines effective for offences sentenced on or after the 14th May 2007.
  2. The starting points are for an offender of previous good character who was convicted after trial.
  3. The same starting points apply whether the activity was caused or incited. Where an offence was incited but did not take place as a result of the voluntary intervention of the offender, that is likely to reduce the severity of the sentence imposed.

"... no precise guidance can be given.  The appropriate sentence is likeley to lie within a very wide braket, depending on all the circumstances of the particular offence.   There will be very few cases in which immediate custody is not called for, even in relation to a young offender because the purpose of the legislation is to protect children under 13 from themselves, as well as from others minded to prey on them.

The sentence for S9 and S10 offences is likely to be less where the victim is under 16 rather than under  13" (per Rose LJ in R v Corran and others [2005] 2 Cr.App.R.(S) 73).

The principal aim for all involved in the youth justice system is to prevent offending by children and young persons.
A court imposing sentence on a youth must have regard to the welfare, 4 maturity, sexual development and intelligence of the youth. These are always important factors.

Where a young offender pleads guilty to one of these offences and it is the first offence of which they are convicted, a youth court may impose an absolute discharge, a mental health disposal, a custodial sentence, or make a referral order.

The starting points below are based upon a first-time offender aged 17 years old who pleaded not guilty. For younger offenders, sentencers should consider whether a lower starting point is justified in recognition of the offender's age or immaturity.

Type/nature of activity: Offence involving penetration where one or more aggravating factors exist or where there is a substantial age gap between the parties 

  • Starting points: Detention and Training Order 12 months 
    Sentencing ranges: Detention and Training Order 6 - 24 months

Type/nature of activity: Any form of sexual activity (non-penetrative or penetrative) not involving any aggravating factors 

  • Starting points: Community order 
    Sentencing ranges: An appropriate non-custodial sentence

'Non-custodial sentence' in this context suggests a youth community order (as defined in the Criminal Justice Act 2003, section 147(2)) or a fine. In most instances, an offence will have crossed the threshold for a community order. However, in accordance with normal sentencing practice, a court is not preclude from imposing a financial penalty where that is determined to be the appropriate sentence.

Relevant Sentencing Case Law

R v Corran and others [2005] 2 Cr.App.R.(S) 73

Att - Gen's Ref no 11 of 2008, [2008] EWCA Crim 1149 D aged 15 (previous good character) pleaded guilty to four counts of sexual activity with a child and one of causing or engaging a child to engage in sexual activity. Some involved abuse of his female cousin aged 8 and 9. Others related to two young boys he befriended. There was evidence D had learning difficulties, he had a difficult childhood and he was vulnerable. The maximum period under a DTTO would not enable him to complete any courses. The Court could see no reason to interfere with a 3 year probation order with an ISSP and a Sexual Offences Prevention Order.

R v Banham [2010] EWCA Crim 448. D aged 17 pleaded guilty to two counts of sexual activity. V was 14 and a willing participant. There was no pressure or signifigant harm. D expressed regret. HELD: This was wholly consensual sexual intercourse with no aggravating features. The appropriate sentence was a community order or lengthy conditional discharge. A suspended sentence was wrong as the offence did not merit custody. A Community Sentence would require D to register for five years which would handicap him finding work. There was no danger requring registration.

Ancillary Orders:

  • Notification (S83 to 96 Sexual Offences Act 2003)
  • Sexual Offences Prevention Order (S104 Sexual Offences Act 2003)

Consider Also:

  • Dangerous Offender provisions apply. Sentences for public protection must be considered.

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