R v Frazer Grace [2025] EWCA Crim 1047

[2025] EWCA Crim 1047Case No 202501950 A5
IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE CROWN COURT AT SHEFFIELD
His Honour Judge Richardson KC
14XN1061723
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 31 July 2025
Before
LORD JUSTICE STUART-SMITHSIR NIGEL DAVISHIS HONOUR JUDGE LICKLEY KC
Between
REXAppellantFRAZER GRACERespondent
Paul Jarvis KC for CrownGordon Stables for RespondentHearing Hearing date: 22 July 2025
Approved JudgmentThis judgment was handed down remotely at 10.30am on 31 July 2025 by circulation to the parties or their representatives by e-mail and by release to the National Archives.The provisions of the Sexual Offences (Amendment) Act 1992 apply to these offences. Under those provisions, where a sexual offence has been committed against a person, no matter relating to that person shall during that person’s lifetime be included in any publication if it is likely to lead members of the public to identify that person as the victim of that offence.

Warning

[1]The provisions of the Sexual Offences (Amendment) Act 1992 apply to the offences with which this judgment is concerned. Under those provisions, where a sexual offence has been committed against a person, no matter relating to that person shall during that person’s lifetime be included in any publication if it is likely to lead members of the public to identify that person as the victim of that offence. This prohibition applies unless waived or lifted in accordance with s.3 of the Act. For the avoidance of any doubt, we do not waive or lift the prohibition.

Introduction

[2]His Majesty’s Solicitor General applies for leave to refer a sentence which she regards as unduly lenient. The sentence was passed by HHJ Richardson KC, the Recorder of Sheffield, on 8 May 2025. He imposed a 3 year community order in relation to each of 6 offences that were committed when the Offender was16. Four of the offences had been committed to the Crown Court on 2 April 2024 on the Offender pleading guilty at the first opportunity. He was then aged17. Subsequently, on 21 November 2024, by which time he was aged 18, he pleaded guilty to two further offences. By the time he came to be sentenced he was aged 19, as he is now.[3]We heard submissions on behalf of the Solicitor General and the Offender on 22 July 2025, at the end of which we reserved our decision and judgment. This is the judgment of the Court and provides our decision and reasons.[4]Various technical points arise as a consequence of his age at various times. We deal with them below. However, as he came to be sentenced on 8 May 2025: i) The offences charged on indictment were(a) an offence of inciting a child to engage in sexual activity, contrary to section 8 of the Sexual Offences Act 2003 (Count 5), and(b) an offence of attempted rape, contrary to section 1(1) of the Criminal Attempts Act 1981 (Count 6); ii) The offences committed to the Crown Court by the Magistrates were, as numbered in the Final Reference, (a) an offence of Sexual Assault of a Child under 13, contrary to section 7 of the Sexual Offences Act 2003 (Charge 1), (b) an offence of distributing indecent photographs of a child (2 category B images), contrary to section 1(1)(b) of the Protection of Children Act 1978 (Charge 2),(c) an offence of taking indecent photographs of a child (Category B images), contrary to section 1(1)(a) of the Protection of Children Act 1978 (Charge 4), and(d) an offence of taking indecent photographs of a child (category C) images, contrary to the same section (Charge 5). We shall adopt the numbering of the Charges as recorded in the Final Reference, which differed from the numbering of the Charges recorded on the Magistrates’ Court extract, throughout this judgment.

The factual background

[5]The Offender and his victim, who we shall call V, are closely related. The Offender is 10 years older than V. V was aged 5 or 6 when the offending occurred. V and the Offender were then living at different addresses, but the Offender would frequently visit V’s home and stay overnight. He had his own bedroom, which was close to V’s bedroom. V and the Offender would spend a lot of time together at her home, often in each other’s bedrooms. The offending took place at the V’s home when she was aged 5 or 6, and the Offender was aged 16.[6]On one occasion, when they were in the Offender’s bedroom, he made V spit on his penis. He then placed his penis against her mouth. This was Count 5. On another occasion, also in the Offender’s bedroom, he tried to insert his penis into her anus. It made a squelching noise and hurt V, so the Offender stopped. This was Count 6.[7]The Offender also sexually assaulted V but it is unclear from the various documents in the case to what conduct the charge of sexual assault and his guilty plea related. This was Charge 1. There was information from V which would have supported the bringing of Charge 1, but neither Counsel for the Offender (who appeared in the Court below) nor Counsel for the Solicitor General (who did not) were able to identify what should be treated as admitted by his guilty plea and we are not able to determine what was included. This is, for obvious reasons, deeply unsatisfactory; but the absence of information should not be held against the Offender.[8]In addition, the Offender took hundreds of indecent photographs of V, which formed the basis for Charges 4 and 5. In two of those photographs, V was lying on her front on her bed. She was naked. The Offender’s hand can be seen in the photograph separating the cheeks of her bottom to expose her vagina and anus. Those two photographs were uploaded to the internet by the Offender and thus distributed to others. This was Charge 2. A charge of taking Category A photographs was not proceeded with.[9]The police first became aware of the Offender’s abuse of V when they traced the two photographs that he had distributed back to him and identified V in them. He was arrested and interviewed on 3 October 2023. He admitted that he had taken indecent photographs of V, some with his penis pressed against her bottom or vagina. He also admitted that he had distributed the two photographs to which we have referred. He said that when he distributed images of V online, other people would send indecent images of other children back to him. The Offender said he had taken these photographs of V because he felt worthless. He did it as a way of punishing himself. He said he would look at the photographs and masturbate.[10]The police carried out an interview with V on 17 December 2023, in the course of which she told them what the Offender had done to her.[11]In a later police interview the Offender said that he sometimes went into the V’s room and touched her chest, bottom and vagina. He denied penetrating her vagina or anus. He said he would pose with his penis against her vagina or anus simulating sex. He said he did this at the suggestion of other people and recorded it for them.

Proceedings

[12]When pleading guilty before the Magistrates to Charges 1, 2, 4 and 5, the Offender indicated not guilty pleas to 4 offences of rape of a child under 13. Those offences were sent to the Crown Court for trial. It is plain from the transcript of a hearing on 28 March 2025 at which the prosecution opened the case and Mr Stables mitigated on behalf of the Offender that there were significant discussions between the prosecution and the defence as a result of which Counts 5 and 6 were preferred and no evidence was offered on the original four charges of rape. It is also plain from the transcript that the case had been identified as one of considerable difficulty from a long way out, such that there had been multiple hearings, the purpose of which was (as the Recorder put it) to try to find a way forward and to finding a solution. We do not have specific details about what was involved in this searching for a way forward save that the end result was that the Offender offered pleas that were acceptable to the Crown and accepted, V did not have to give evidence, and numerous reports on the Offender were obtained for the assistance of the Court in sentencing him.[13]The Crown opened the case by reference to the adult guidelines for sexual offences. On the Offender’s behalf, Mr Stables entered a highly competent plea in mitigation in which he concentrated, correctly, on the guideline for Sexual offences - Sentencing children and young people, emphasising the distinctly different approach mandated by that guideline when compared with the adult guidelines for sexual offences. He placed considerable weight on the evidence in the reports to the effect that the Offender had been befriended online by older people who, in his submission, had been toying with the Offender and looking to see how far they could get him to go and act on their behalf, relying on the hold they now had over him. He submitted that the reports showed a vulnerable and immature 16-year-old whose autism/ADHD and lack of support in his upbringing contributed materially to his difficulties. He relied upon the progress that the Offender had made in holding down a job and submitted that the prospects of rehabilitation were very strong.[14]Having heard the prosecution’s opening and Mr Stables’ mitigation, the Recorder then adjourned the case to 8 May 2025, as he put it, to maximise the time available to him to think about the sentence he should impose. In announcing his decision to adjourn, the Recorder acknowledged that the exercise he had to undertake was exceptionally difficult because, on the one hand, the Offender had committed serious crimes towards the very young V, while on the other he had to sentence the Offender as if he were a 16-year-old.[15]The Recorder ultimately sentenced on the basis that the Offender was entitled to a reduction of 25% for his plea to Counts 5 and 6 and that he was entitled to a full 1/3 reduction for his timely plea on the other charges. There is no challenge to that assessment. The information before the court Victim impact statements (I32/T34)

The information before the court

[16]V’s mother made two victim impact statements. In her first she explained that V did not fully understand what had happened to her or how wrong it was. In her second, made in April 2025, after the hearing on 28 March where it had been submitted that there was an absence of evidence of significant psychological harm she wrote that V is not sleeping, and refuses to be in bed on her own. She cries at night. She still does not understand the seriousness of what the Offender did to her. Her mother worries about what the future will hold for V. She feels the Offender manipulated V and that at some point the family will have to explain her why he did those things to her. She does not know how her daughter will cope.

Character references

[17]In a long and detailed letter to the Recorder, the Offender’s mother recounted the Offender’s developmental difficulties involving speech and toilet training, the familial difficulties including difficulties caused by neuro-divergence, the breakdown of his parents’ marriage and its effect on the Offender, raising the question of his confused sexuality when he was 13. She gave an account of the police interaction with the Offender and how he had kept going with a good work ethic, having recently been made permanent in his job. She described the Offender as caring and compassionate. She spoke of his shame and regret and that he had matured in the last year, with the aid of psychiatric sessions.[18]The Offender’s stepfather charted the Offender’s decline to the state he was in when committing the offences. In a reflective letter to the Recorder, he expressed the opinion that, although prison was obviously an option, it would do no good whatsoever for a person who was trying to move forward as best he could with a full-time job and qualifications achieved through is work and a determination to do the right thing.

Psychological report

[19]The Court had a report from Dr Emilie Smithson, a clinical psychologist. She considered that the Offender would amply meet the criteria for a diagnostic assessment of autism. She traced the impact of various familial events on his neurodevelopmental disorder, including his parents’ separation, challenging behaviour by his older sibling, feelings of loneliness and isolation and, approaching the time of the offending, struggling with his sexuality at a time when he was experiencing little social support. She noted his acceptance that he had a sexual interest in children for some time before the offending with which we are concerned.[20]Addressing the motivation for the Offender’s offending and the Offender’s understanding of the charges he faced, Dr Smithson wrote:
“6.59 [The Offender] spoke with some detail about the factors contributing to the offending, explaining “I met people online, I was just talking, I feel like they were older, they were older, they found out [about V] and started asking me to do stuff.” 6.60 Due to having expressed a preference for written rather than verbal communication, [the Offender] was given the option of providing the author with responses by message. He subsequently wrote “I would like to say how desperately sorry I am for taking those pictures I feel so ashamed for it when I was younger, I was so vulnerable and scared and lonely I didn’t belong anywhere I thought the men that were messaging me were my friends I trusted them. After I took the pictures and sent them, I was so upset I cried and panicked but I was so afraid of the men finding me and hurting me. I never wanted to upset [V] and I’m so sorry I have and now lost her I’m so sorry for the upset I’ve caused all my family I never wanted to, and it breaks my heart. I will never do anything wrong like that again I just really want to work hard in my job and make everyone proud.”
[21]In Dr Smithson’s opinion, the Offender would be vulnerable to exploitation by others and, referring to the information that others had said that he “owed them”, that he would be unlikely to have the social skills to recognise their “nefarious intent for their own gain”, that he was unlikely to have been able to form an appropriate judgment when those he considers friends suggested that the behaviour was “ok” and would easily acquiesce. She suggested that the volume of images he was receiving would suggest to him that this was commonplace and tolerated because “the people assured me that I wouldn’t get into trouble and because it was happening in private.”[22]In two important paragraphs, Dr Smithson said: 8.14 From [the Offender’s] statement, his primary motivation for the offending behaviour was not the molestation of the victim for sexual gratification, but that this was initially a means to make and maintain social acceptability “people would say that I ‘owed them’ because they had sent things to me and I wouldn’t send anything back…I was hoping that if I sent things back they would accept and like me more” and that this hereafter became perpetuated by fear of repercussion. 8.15 [The Offender] indicates an understanding of the law, stating “I knew what was happening was wrong and I didn’t know how it would ever come to an end as I couldn’t seem to stop myself or indeed stop talking to my ‘friends’ online.”[23]Her view on the influence of his mental health and social difficulties were:
“8.18 Based on the information available, it would suggest that factors influencing [the Offender’s] offending could be understood as social in nature; that is, a naïve understanding of legal issues, poor social support and a lack of connectedness with others, and vulnerability to exploitation and influence.”
[24]Later she reiterated that “the Offender’s poor interpersonal skills and personal vulnerability were a factor in his offending” (para 8.24, emphasis added) and that “the information available suggests that [the Offender] was victim to online pressure from likely older individuals to share indecent images of himself online” (para 8.26).[25]Addressing potential outcomes, Dr Smithson said:
“8.27 … Were [the Offender] to be given a custodial sentence, it is important to consider the likelihood that this would dysregulate [the Offender’s] emotional wellbeing and- due to his poor self-awareness and self-regulation strategies- has the potential to lead to social withdrawal, depressed mood, and suicidality. 8.28 Due to [the Offender’s] poor social communication abilities, he is less likely to verbalise his difficulties to others and may instead become withdrawn from others. Therefore, it is imperative that [the Offender] be monitored for signs of deterioration. Consideration should be given to allocating [the Offender] a key member of staff each shift who would check as to [the Offender’s] wellbeing. It is suggested that staff initiate such conversations as – due to [the Offender’s] difficulties- it is unlikely that he would articulate his problems independently.”
[26]Dr Smithson’s report provides powerful support for the proposition that his condition and social difficulties rendered him vulnerable to exploitation by others, and that such exploitation was a factor that contributed to his offending. To that extent she supports and inference that his culpability was reduced; but her evidence does not support (and does not purport to support) a proposition or finding that his culpability and responsibility were entirely eliminated.

Psychiatric report

[27]The Court had a report from Dr Pablo Vandenabeele, a consultant forensic psychiatrist. He took a detailed history, including access to the Offender’s medical records, which was broadly consistent with the information available to and recorded by Dr Smithson and the writer of the Pre-Sentence Report. It included noting a history of self-harming when 13-14 and subsequently after his arrest. The Offender’s account of his involvement with others was:
“13.4 … [Some] years ago he had started talking online to some older men and he said: “I felt I had friends”
. He also told me that after some 6 or 12 months these people started sending him pictures of sexual acts involving young people. He said that he used to speak to these men a couple of times per week and he estimated that he had been sent in the region of 60 to 100 images. [The Offender] said that he had never asked for these images and that he had not used these for sexual gratification. 13.5 [The Offender] said that after some time these men started telling him that he owed them (“Now you owe us”) for these pictures and that they were putting pressure on him to “do things” to [V] and send them pictures of this. He said that he was frightened of these people in case they “try to find me.” 13.6 He said that on different occasions he took sexual pictures of [V] and he also said that he has been accused of trying to insert his penis “inside her” to take a picture. He said that he realised that such acts were wrong but that he was scared of what the people he had met online would do to him. 13.7 [The Offender] reported feeling embarrassed and ashamed about the alleged events. He also stated that he does not have any sexual interest in young people.”[28]It will be noted that his assertion that he does not have any sexual interest in young people is inconsistent with what he said to Dr Smithson and on interview by the police. Dr Vandenabeele then reported on the Offender’s account in interview which included the Offender’s account of discussing child abuse (including the assaulting and rape of young children) over a protracted period.[29]Dr Vandenabeele’s opinion was that the Offender was suffering from a likely diagnosis of ASF with a likely comorbid history of adult ADHD and a complex history of emotional difficulties. In expanding and explaining his opinion he was clear that a condition of ADHD does not provide an explanation for the alleged events. On the information available to him, there was a repeated pattern of the alleged events and the alleged behaviours cannot be regarded as being the result of impulsivity: para 15.18. He continued:
“15.19 Whilst it is not my view that the events subject of the current allegations were directly caused by a condition such as ASD, it is my view that such a condition may provide a valuable and important contextual understanding of his alleged offending. First, it is my opinion that as a result of such difficulties he experiences difficulties understanding the impact of his behaviours may have upon alleged victims. Second, I also note the following from the literature: “Individuals with ASD seem to have more hypersexual and paraphilic fantasies and behaviours than general-population studies suggest. However, this inconsistency is mainly driven by the observations for male participants with ASD”
. Third, it is my view that as a result of the social difficulties associated with a diagnosis of ASD, he would be more vulnerable to exploitation by others; this would be relevant if Mr Grace’s account is accepted that he had formed online “friendships” with older men encouraging or pressuring him to engage is sexual activity with V. 15.20 It is therefore my view that his mental health difficulties that, in my opinion, result from a likely conditions of ASD would likely reduce his culpability to some degree although this and the extent of this is ultimately a matter solely for the Court to determine.”[30]It was Dr Vandenabeele’s strong recommendation that the Offender be referred to the local ADHD services, which he understood had been initiated; and that he be referred to the specialist adult ASF services.

PSR and addendum

[31]The original PSR contained much information and was amplified by an addendum report. Included in the original report were the Offender’s account of being coerced by individuals on a social media platform to take and distribute pictures of V; and that he had felt unable to disclose what he was doing because of intimidation, shame and confusion throughout.[32]As recorded by the writer of the PSR, the Offender’s account to her was:
“Prior to the offences occurring, he had been using a social media platform 'Quora'. Initially, he engaged in 'small talk' with a number of people on this platform. They then began to speak about family. Some people asked to see photos of [V], which he replied to with non-sexual images. The people responded with compliments such as 'she's cute'. They then asked him to send some naked pictures of [V]. He recalls that 'I didn't want to do it and I knew it was wrong', but these people told him 'we've got your IP address', so he was 'scared' that they would locate his home address and target him and his family there. He therefore took some naked images of [V]and sent them to these people. The situation progressed; his on-line contacts asked him to undertake and record sexual acts with [V]. He did not feel able to disclose what was happening due to intimidation and shame. He felt 'confused' throughout the situation. He recalls that there were 2-3 occasions when he undertook sexual acts with [V]. Firstly, when he put his penis near her mouth, but did not penetrate her mouth. Secondly, putting his penis between her thighs, but he did not penetrate her vagina. He confirms that he gained an erection during these acts, but states he did not ejaculate. He reports that he does not have a sexual attraction to children. He is clear that he would not have acted in this way if he had not been communicating on-line with the individuals who were asking him for this material.”
[33]It was the view of the writer that he was emotionally immature at the time of offending. She pointed out that he was himself a child at the time, with various identifiable vulnerabilities: however, there was no suggestion that he lacked legal capacity, so (in the view of the writer) he was culpable for his actions – and in conversation with the writer of the PSR the Offender said that he accepted responsibility for his actions. The writer agreed with the views of the experts that pursuing assessments for ASD and ADHD was and remained a high priority. The original PSR referred to him being “acutely vulnerable within the prison environment in terms of his emotional well-being and being susceptible to manipulation and bullying by others”. It also referred to the need for a “robust risk management plan” to be formulated. In the absence of professional intervention he presented a high risk of causing future harm to young females.[34]Further details of what such a plan could involve were provided by the addendum report. It states explicitly that the report was requested because the court was reluctant to send the Offender to prison: the writer was asked to consider nothing less than a 3-year community order. The writer’s response was that “it is … arguable that an intensive community-based sentence is the most constructive response to the situation, in that rehabilitative work is most likely to be successful if undertaken whilst [the Offender] is living in a familiar and supportive domestic environment.”[35]The writer then outlined a potential plan for sentencing and subsequent management which, in the event, was adopted by the Recorder save that the PSR suggestions included a requirement to do 200-300 hours of unpaid work in the community, which was not adopted.

The sentencing remarks

[36]Early in his sentencing remarks, the Recorder drew attention to the distinctly individualistic approach that was required when young people commit serious offences which, if perpetrated by an adult, would result in a term of imprisonment of many years. Having outlined the facts, including accepting (twice) that the Offender was acting under “a level of coercion from others when [he] perpetrated these acts”, he prefaced his application of the relevant guideline for sentencing children and young people for sexual offences by considering what the appropriate sentence would be for an adult who had committed the same offences, concluding that “three episodes of non-penetrative but serious sexual assault of a six year old child would have resulted in a total sentence of at least 10 years and in all likelihood 12 years’ imprisonment.”

The Recorder then turned to the fact that the Offender was not an adult:

“…you were aged 16 at the time but this conduct did involve an element of grooming, it was also repeated, it also involved taking indecent images of V and distributing them. I accept however that you were pressured and coerced by others on the internet to do this. Let there be no misunderstanding you were being used and exploited by others online to do this. Consequently basing myself upon the various reports to which I have called attention you were a child aged 16 when you did this you were vulnerable to exploitation by others and at the time unable to gauge that you were being exploited. You have expressed profound remorse, shame and guilt. You have an autism spectrum disorder; you suffer from ADHD and impulsivity is an aspect of it. You self-harmed following your arrest.”
[38]After referring to the letter from the Offender’s mother and the various reports he summarised his view as follows:
“My overall assessment of you having regard to that very brief summary of the contents of very full reports that you are a vulnerable and complex young man. It is very important to emphasise by reference to the various guidelines relating to sentencing young people that very different considerations apply. Your age and level of maturity when you perpetrated the crime is of importance. Children and young people are less emotionally developed. Very often there is inappropriate sexual experimentation and on occasion as in this case there was exploitation of you and coercion. Furthermore you have the learning disability and your mental health is of significance.”
[39]The Recorder then said that he had the further guideline of the Sentencing Council in relation to sentencing those who have a learning disability and mental health problems well in mind. He continued by applying the various steps required by the Guideline for sentencing Children and Young Persons for Sexual Offences. In doing so he repeated his view that the Offender was a young man with very considerable difficulties who was “coerced and in effect forced to do as [he] did”, repeating that there was an element of grooming in the case; and he expressed the hope that one day V and her mother would be able to come to terms which what happened and why it happened. He also made express reference to paragraph1.1 and1.2 to 1.10 of the relevant Sentencing Children and Young People Definitive Guideline.[40]The Recorder then set out his analysis for the present case. He commenced by stating that the mitigation in this case is “immense”. He then turned to what sentence would have been appropriate if the Court were to impose a custodial sentence, concluding that a sentence of 3 ½ years detention would have been appropriate.

The Recorder then said:

“I have as I am required to stepped back. I must take an individual approach. I particularly have regard to the fact that you were coerced yourself into doing this. You have significant mental health problems as I have sought to explain and they are fully set out in the various reports. I have furthermore considered the recent addendum to the Pre-Sentence Report where you are plainly amenable to rehabilitation and I emphasise yet again I am not sentencing you as a 19 year old man for committing these offences I am sentencing you as if you were aged 16 in the circumstances that I have set out. Accordingly I have come to the conclusion that the right course of action in this case and it is not an act of leniency it is simply the right sentence in all the circumstances of this case that a three year community order is the right course of action.”
[42]Having checked with Counsel that he had not omitted anything of importance he sentenced the Offender in the terms that included the express recognition that, despite the seriousness of the case, “the right course of action here is to improve you as a human being [if] that can be done.”

The Solicitor General’s Submissions

[43]The SG emphasises the seriousness of the offending, in particular that although the offending was non-penetrative, the Offender’s intention when committing the offence of attempted rape was to achieve penetration and that he came close to achieving that intention. Second, the SG relies upon the disparity in age between the Offender and V. Third, while accepting that the only reason why the Offender groomed and abused V was that he had been coerced by others he met online, the grooming and abuse was persistent. Fourth, in addition to committing the contact offences, he photographed them and posted 2 pictures online. Fifth, the impact on V has been significant as demonstrated by her mother’s second impact statement.[44]On the other side of the coin, the SG accepts that the Offender had mental health problems and a troubled upbringing, and was genuinely remorseful for what he had done. However, in the light of the identified factors the Solicitor General submits that the seriousness of the offences meant that a custodial sentence was inevitable. Failure to impose a custodial sentence should lead to the conclusion that the sentence passed by the Recorder was unduly lenient.[45]In oral submissions Mr Jarvis emphasised three particular points. The first was that Count 6 involved an attempt to penetrate that came very close to succeeding and which caused V pain. As he put it, it was not for lack of effort that Count 6 did not involve penetration. Second, he points to the fact that there were three serious contact sexual offences over time. This, he submits, supports the view that the offending overall was(a) persistent and(b) so serious that a non-custodial sentence was unavoidable. Third, he submits that the Recorder’s repeated references to and reliance upon coercion give that feature an unjustified prominence in the light of the expert evidence and the Offender’s own accounts (which we have cited above) demonstrating that the causes of his behaviour were multi-factorial and could not simply be attributed to his being ensnared by other people online.

The Offender’s submissions

[46]On behalf of the Offender, Mr Stables submits, as he submitted to the Recorder, that a non-custodial disposal was appropriate and that the sentence imposed by the Recorder was not unduly lenient. He places considerable emphasis on the fact that the Recorder had the benefit of having the Offender before him on 7 occasions and that he had expressed on several occasions that he assessed the Offender’s remorse as being genuine. He endorses the Recorder’s description of the available mitigation as “immense” and that he was right to keep the prospects of rehabilitation firmly in mind at all times. He submits that this is not a case of grooming as usually understood; and he maintains that the Recorder was right to accept that Count 6 should be treated for the purpose of the Guideline as being a non-penetrative offence: there was no penetration although there would have been if the attempt had been successful.

Discussion and resolution

[47]We acknowledge at the outset the great experience and expertise of the Recorder of Sheffield and that his driving motivation in this case was the potential rehabilitation of the Offender. That was without question an important and humane factor to be taken into account when approaching what was on any view a difficult and sensitive sentencing exercise. There is a question at the heart of this reference which is easy to state but not at all easy to resolve: was this offending by this Offender at his age and immaturity and with his psychological and personality issues so serious that only an immediate custodial sentence could properly be imposed?[48]Some things are not in doubt. First, the custody threshold was clearly passed. Second, quite apart from being only 16 at the time, the Offender was both immature and ill-equipped for his chronological age, as set out in detail in the PSR and the other reports. Third, the Recorder has not omitted any material feature of the case in his assessment. Fourth, the Recorder was fully conscious of his power to impose an immediate custodial sentence of significant length. Fifth, the Recorder went to considerable lengths (as we have set out above) to explain his thinking. Furthermore, although when viewed in isolation, his assertion that “a three year community order is the right course of action” seems lacking in support, there can be no reasonable doubt that his assertion is the product of the various considerations he had previously set out seen in the context that the principal aim of the youth justice system is to prevent offending and to pursue the welfare of an Offender by rehabilitation.[49]Even taking these uncontroversial matters into account, we are driven to the conclusion that the Recorder was wrong to impose a non-custodial sentence in the circumstances of this case. There are a number of reasons which, cumulatively, drive us to this conclusion.[50]The first and most important reason is the scale of the offending for which the Offender fell to be sentenced. The offences to which he pleaded guilty represented a persistent and escalating sequence of serious sexual offending. The Offender had 165 category B and 195 category C images on his phone. Some were not images of V but many were. There were then three serious contact sexual offences, culminating in an attempted rape that came close to penetrative accomplishment. The offending occurred in the context of a significant disparity in age between the Offender and the very young and particularly vulnerable V. It involved the distribution of indecent photographs of V falling within category B. All this has caused (at least) significant psychological harm for V. The seriousness of the offending receives some measure of indication from the Recorder’s assessment that the appropriate sentence for an adult after a trial would have been at least 10 years and in all likelihood 12 years’ imprisonment. That is by no means determinative: as the Recorder rightly emphasised, the approach to sentencing young persons under the Guideline for sentencing children and young people for sexual offences is different. But we endorse the view expressed by the Recorder that, even on that basis, an appropriate custodial sentence had he not decided upon a non-custodial disposition would have been one of 3 ½ years. The fact that a custodial sentence of that length would have been appropriate for this Offender and these offences had the Recorder not been persuaded that a non-custodial sentence was appropriate is itself a clear indication that the sentences imposed by the Recorder were lenient to a marked degree.[51]Second, we are persuaded that the Recorder’s approach to the question of coercion was not justified by the materials he had available to him. We accept without reservation that participation in offending due to coercion may be a mitigating factor. We have noted the successive references to coercion at [37], [38], [39] and [40] above. The Recorder progressed from referring to “a level of coercion”, which was entirely justifiable on the materials he had available to him, to the assertion that the Offender being “coerced and in effect forced” to do as he did, which in our judgment was not warranted. In our judgment, the Recorder’s approach was over-generous to the Offender who engaged in this course of conduct over a protracted period. The Recorder appeared to attribute some or all of the offending to impulsivity attributable to his ADHD: see [38] above. That ignored the persistence of the conduct and the fact that impulsivity was expressly excluded by Dr Vandenabeele’s evidence: see [27], [28] and [29] above. Although the Offender’s poor interpersonal skills and vulnerability were a factor in his offending they do not provide a full explanation for it: see [24] and [29] above.[52]Third, and connected to the second point, the Offender’s residual responsibility when all is said and done remained significant. He confirmed repeatedly that he knew that what he was doing was wrong and retained responsibility for it: see [22], [28] and [33] above.[53]Fourth, he was assessed as still posing a high risk of causing future harm to young females: see [34] above. This assessment was entirely consistent with his (sometimes) acknowledged longstanding sexual interest in children.[54]Fifth, the Recorder was right to accept that there was a measure of grooming (as normally understood) as the Offender progressed from photographing to contact sexual offences.[55]For these reasons, we conclude that the Recorder was wrong to impose a non-custodial sentence upon this Offender.[56]In our judgment, notwithstanding the Recorder’s assertion that the sentence he was imposing was not lenient, we are persuaded that it was not merely lenient but unduly lenient. We consider that his assessment that (if a custodial sentence was to be imposed) a period of 3 ½ years was appropriate. Neither Mr Jarvis nor Mr Stables sought to persuade us that it was not and, indeed, in our judgment it could well have been somewhat longer.[57]At this point, a number of technical issues concerning the powers of the committing and sentencing powers Courts arise.[58]We start with Counts 5 and 6. As we have said, the Offender was 18 when he pleaded guilty to those offences. A community order was therefore technically available to the Crown Court. However, given our conclusion that a custodial sentence of 3 ½ years is appropriate, we quash the sentence imposed by the Crown Court and substitute on each Count a sentence of 3 ½ years detention in a young Offender institution pursuant to section 262 of the Sentencing Act 2020 (“the Sentencing Code”).[59]Turning to Charge 1, the Court Record says that it was committed to the Crown Court pursuant to section 4A of the Powers of Criminal Courts (Sentencing) Act 2000. That section was repealed by the Sentencing Code. The offence should have been committed pursuant to section 16 of the Sentencing Code. As the youth court had power to commit the offence for sentence pursuant to section 16 of the Sentencing Code, the error does not affect the validity of the committal. However, a Community Order was not an available sentence before the Crown Court because it is only available for those who are 18 on conviction and, as we have said, the Offender was only 17 when he pleaded guilty. The sentence on Charge 1 therefore needs to be adjusted in any event to make the sentence imposed lawful.[60]Given our conclusion that a non-custodial disposition was inappropriate, and because in our judgment a detention and training order is not suitable, it would be open to this Court to impose a sentence of detention pursuant to section 250 of the Sentencing Code. Alternatively, it is open to this Court to impose no separate penalty.[61]The position with regard to Charges 2, 4 and 5 is different. The three charges relating to taking and distributing photographs were recorded by the Magistrates Court as being committed pursuant to section 4A of the Powers of Criminal Courts (Sentencing) Act 2000. That was wrong as the appropriate section when sending these offences along with the offence of sexual assault was section 20 of the Sentencing Act 2020. Once again, the error does not invalidate the committal; but where offences are sent pursuant to section 20, the effect of section 23 of the Act is that the Crown Court may deal with the Offender in any way in which the youth court could have dealt with him. That does not detract from the fact that these charges alleged the commission of serious offences in their own right. As he was 17 when he pleaded guilty, the powers of the youth court would have included a 24 month Detention and Training Order or a Youth Rehabilitation Order but not a Community Order. The sentences passed by the Crown Court on Charges 2, 4 and 5 were therefore unlawful and require to be adjusted.[62]In our judgment, the simplest and most convenient way to dispose of this reference overall is: i) To quash all of the sentences imposed by the Crown Court; ii) On Counts 5 and 6 to impose a sentence of 3 ½ years detention in a young offender institution pursuant to section 262 of the Sentencing Code, concurrent; iii) To impose no separate penalty on Charges 1, 2, 4, and 5 (recorded as charges 2, 9, 10, 11 on the Magistrates’ Court extract), the criminality involved in these Charges being reflected in the lead sentences imposed on Counts 5 and 6.[63]For these reasons we give leave, quash all of the sentences imposed by the Crown Court, impose a sentence of 3 ½ years detention in a young offender institution pursuant to section 262 of the Sentencing Code, concurrent on Counts 5 and 6, and impose no separate penalty on Charges 1, 2, 4 and 5. In the light of those sentences, we direct that the correct Victim Surcharge Order is £34.