K, R. v [2014] EWCA Crim 2907
[1]"Just pausing there for a moment, [GR], of course, in her video recording had spoken about, not just [HK], being responsible for their sexual activity, but also being held by somebody else. When she came to give evidence before you of course in relation to the then defendant [KH], she gave an entirely different account of it and spoke about [KH] only at the very end of events giving her a cuddle before she went off, when all the sexual activity down the alleyway had finished." One of the submissions advanced before us is that having allowed the submission with respect to the co-accused it should have been allowed here too. We wholly reject that submission. It is plain from that part of the transcript we have read that the position of the co-accused was an entirely different one. The evidence in relation to this applicant was very different and there was the supporting evidence which we have indicated over and above the testimony given by the victim herself. In our judgment, the judge was fully entitled to leave this matter to the jury to assess the witnesses and to evaluate the evidence. He obviously gave the matter careful thought and reached a conclusion which he was perfectly properly able to reach. We therefore do not grant leave to appeal against conviction. As far as the sentence is concerned, the judge indicated that if the appellant had been an adult he would have received a custodial sentence of 8 years. In the circumstances, given the age, he reduced this to 4 years' imprisonment in relation to the rape. He did not think a consecutive sentence would be appropriate because of the age of the appellant and also because the offence was committed on the same occasion. The short point in relation to the sentence advanced by counsel is that insufficient consideration was given to the age and perhaps more importantly to the maturity of this particular appellant. It is said that in the circumstances something more than a reduction by 50% was appropriate. It is unfortunate that he was sixteen-and-a-half by the time that he was sentenced. But the judge did recognise that he was only 14 when he committed the offences. The judge also had the victim impact statement which indicated, not surprisingly, that this young girl, not yet a teenager, had been badly affected by the experience. Nonetheless, we take into account the fact that a 4 year sentence is a very long time for a 14-year-old boy albeit now 16. We have reached the conclusion that the judge ought to have allowed a little more credit in this case, bearing in mind the age and maturity. We are aware the defendant had been the subject of a referral order on two occasions, one for burglary and one for theft of a cycle but they were very different offences to the sexual offences committed here. We also respectfully bear in mind that the judge was in a particularly good position to assess this defendant during the trial. Nonetheless we have come to the view that in all the circumstances, given his age at the time of committing this offence and given the maturity or lack of it, that an appropriate sentence would have been one of 3 years' detention in a young offender institution. Accordingly we uphold the appeal in respect of sentence and for the sentence of 4 years' detention imposed by the learned Recorder, we substitute a sentence of 3 years' detention. To that extent the appeal against sentence succeeds.