R v LIJ [2026] EWCA Crim 1053

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IN THE COURT OF APPEAL

CRIMINAL DIVISION

Between

R EXCrown

London

WV2A 2LL

ON APPEAL FROM THE CROWN COURT AT NEWCASTLE UPON TYNE

(HER HONOUR JUDGE MALLETT) [10U75082621]

Case No 2025/04672/A2 Tuesday 28 July 2026

Neutral Citation No [2026] EWCA Crim 1053

B e f o r e:

LORD JUSTICE POPPLEWELL

MRS JUSTICE CUTTS DBE

HIS HONOUR JUDGE ANDREW LEES

(Sitting as a Judge of the Court of Appeal Criminal Division)

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- v –

Between

L I J

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Computer Aided Transcription of Epiq Europe Ltd,

Lower Ground Floor, 46 Chancery Lane, London WV2A 1JE

Tel No: 020 7404 1400; Email: rcj@epiqglobal.co.uk (Official Shorthand Writers to the Court)

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Mr P Sabiston appeared for Appellant

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J U D G M E N T

Date 2026-07-28

[1]On 18 August 2025, following a trial in the Crown Court at Newcastle Upon Tyne before Her Honour Judge Mallett and a jury, the appellant (then aged 28) was convicted of two offences of Causing or inciting a child under 13 to engage in sexual activity contrary to section 8 (1) of the Sexual Offences Act 2003 (counts 1 and 2) when the appellant was aged 11 to 13; and two offences of Rape of a child under 13 contrary to section 5(1) of the Sexual Offences Act 2003 (counts 3 and 4) when he was aged 12 or 13.

[2]On 11 December 2025, he was sentenced by the trial judge on count 1, to two and a half years' imprisonment; on count 2, to a concurrent term of three years imprisonment; and on each of counts 3 and 4, to concurrent terms of four years' imprisonment but they were ordered to run consecutively to the sentences on counts 1 and 2. Accordingly, the total sentence was one of seven years' imprisonment.

[3]A Sexual Harm Prevention Order and a Restraining Order were made until further order. The appellant was required to comply with the notification requirements of Part 2 of the Sexual Offences Act 2003 indefinitely; and he will or may be included in the relevant list by the Disclosure and Barring Service.

[4]The appellant appeals against sentence by leave of the single judge.

[5]The victims in this case are entitled to lifelong anonymity. In order to preserve their anonymity it is necessary to anonymise the name of the appellant, because to identify him would lead to the identification of the victims.

The Offending

[6]Between 2007 and 2011, the appellant committed sexual offences against two of his younger siblings when he lived with them in the family home. In relation to his younger sister, victim number 1 ("V1"), the appellant made her touch his penis on a number of occasions when she was aged5 to 7 and he was aged 11 to 13. In relation to his younger brother, victim number 2 ("V2"), the appellant made him suck his (the appellant's) penis on two occasions when V2 was between 10 and 12 and the appellant was aged 12 or 13.

[7]The appellant was the eldest of four children. His brother, V2 was the next child; he was two years younger than the appellant. The third child, a sister, was two years younger than V2. The youngest child was V1; she was two years younger than the third child.

Counts 1 and 2

[8]When V1 was about 5 years old, the children would take turns to use a family computer. On one occasion when V1 and her sister were waiting to use the computer the appellant, then aged about 11, said to them that if they wanted to use the computer, they would have to touch his penis. On this occasion, the appellant tool out his penis to get them to touch it. V1 did what the appellant asked because she wanted to use the computer. Her sister refused. V1 described the appellant's penis as pointing upwards when he took it out for her to touch and when she touched it, it was a brief touch in order for her to go on the computer.

[9]There was then a gap of about two years before the appellant got V1 to touch his penis again. By this stage V1 was aged about 7½ years. Again, the appellant would say she had to touch his penis before she could go on the family computer. This time it did not just happen once, but a couple of times a week for approximately a month. The indictment alleged that it occurred on at least five occasions. The offending came to an end when the children's father got rid of the computer because it was causing too many arguments in the family. V1 stated that when the appellant was committing the offences he told her that if she told anyone what was happening her mother would be disappointed in her and would not love her anymore. She described that the offending had occurred more than once before her mother died and twice a week after.

Counts 3 and 4

[10]When V2 was aged about 10 or 11, the appellant would make him suck his (the appellant's) penis. This would take place in their bedroom. The first time it happened the pair of them were in the bedroom on their bunkbeds. The appellant told V2 to come up onto his bunk. Once there the appellant grabbed V2's hair and pulled his head down towards his penis. He put his penis into V2's mouth and ordered V2 to suck his penis. He threatened V2 that he would push him down the stairs if he did not do so. V2 told him no but because the appellant was bigger and stronger than him, he was not able to resist. This took place once more during the time period in count 4, which was from August 2009 to August 2012. V2 had indicated that sexual offending went on until he reached the age of about 14, when he started to fight back, which caused the appellant to stop. That further offending was set out in counts 5 to 8 of the indictment but the appellant was found not guilty on those counts. Counts 3 and 4 were single incident allegations.

[11]In the Summer of 2019, V1 told her father and stepmother what the appellant had done to her. Her father then wondered whether anything had happened to any of the other children. V2 confirmed that he too had been the victim of sexual offending at the hands of the appellant.

[12]In police interview the appellant denied all the offending. He suggestedV1 had been put up to the allegations and V2 simply did not like him and that must be why he was making the allegations.

Antecedents

[13]The appellant had no previous convictions. He had a reprimand for criminal damage in 2011.

The Pre-Sentence Report

[14]The appellant continued to deny these offences. He discussed with the author of the report being a victim of violent and abusive behaviour at the hands of his father. The author observed that the appellant was a minor at the time of his offending and that immaturity may have played a role with a lack of awareness of the consequences of his actions.

The Psychiatric Report of Dr Turner, dated 1 December 2025

[15]Dr Turner said that the appellant presented with significant ongoing depressive and post traumatic stress symptoms; he is likely to be vulnerable to a deterioration in a custodial setting; and a possible risk to himself ought to be communicated to the prison, should he be sentenced to custody. Dr Turner said the appellant's account of childhood emotional and physical abuse by his father, sexual abuse by an uncle when he was between the ages of 6 and 10 or 11, and the consequent mental health difficulties would have had an impact on the appellant's judgment.

[16]There was further evidence about the appellant's difficult background of physical and emotional abuse, his vulnerabilities, and his physical and mental health in a report from the Mental Health Liaison Team which had been obtained prior to the trial.

Victim Personal Statements

[17]Victim Personal Statements were before the court. In summary, V1 said in her statement,dated 2 October 2025, that the impact of the abuse took away her childhood, and she struggles to make sense of why this happened to her. She suffers from anxiety, depression, post traumatic stress disorder, and insomnia. She has struggled to form friendships and relationships.

[18]In summary, V2 said in his statement, dated 6 October 2025, that the abuse affected most of his teenage years; his education was affected; his mental health has suffered; and he is left with anxiety and depression.

The Sentencing Exercise

[19]We acknowledge that the sentencing exercise which the judge had to undertake was not straightforward given that the applicant, as the judge found, was between the ages of 11 and 13 when the offending occurred and was himself the victim of abuse when he was a child, which had an impact on the way he behaved towards his siblings.

[20]At the time of sentence, the applicant was 28 years of age. He had no previous convictions and had lived an apparently blameless life (ignoring the caution for criminal damage, which we do). He was and is vulnerable; he has mental health problems which are likely to have an impact on his ability to cope in prison.

[21]When considering the sentencing guideline for sexual activity with a child, the judge found that V1 had suffered severe psychological harm as a result of the offending, and that she was particularly vulnerable at the time of the offending in counts 1 and 2. Accordingly, she concluded that the offending against V1 fell into culpability B and category 2 harm, which has a starting point of six years' imprisonment and a range of 3 to 9 years' imprisonment for an adult. She said the offending was aggravated arguably by the specific targeting of that particularly vulnerable child, and the multiple times the sexual activity occurred in the period covered by count 2, where the appellant had started the sexual activity again when he knew there was no longer a risk of her telling her mother who by that time had passed away, the location of the offending and in relation to count 1 the presence of her sister and the steps taken by the appellant to prevent her from reporting what had happened.

[22]The judge identified as mitigating factors the appellant's lack of previous convictions, his age and his lack of maturity.

[23]As regards the counts charging rape of a child, she categorised both offences as culpability B offending. She noted the element of the threat of violence and concluded that the offending was level 2 harm. The starting point for B2 offending is ten years' imprisonment, with a range of eight to 13 years for an adult.

[24]The judge identified the aggravating factors as the location of the offending (in the victim's bedroom) and the violence around the time of the offending.

[25]Similar mitigating factors applied.

[26]In her approach to sentencing, the judge adopted the relevant sentencing guidelines to arrive at the sentence for an adult offender before reducing the sentence by 60 per cent to reflect the appellant's age and lack of maturity at the time. The judge did not make specific reference to what sentence would have been passed on a child of the age the appellant was when the offences were committed.

The Grounds of Appeal

[27]The following grounds of appeal are advanced by Mr Sabiston on the appellant's behalf:(1) The sentence imposed is manifestly excessive considering the offender's age at the time, the relevant sentencing guidelines for children and young people and the principle of totality;

(2) The sentencing judge failed properly to apply the sentencing guidelines for children and young people, particularly in not giving sufficient reduction for age and maturity and by imposing consecutive sentences that do not reflect the guidelines for youth offenders;

(3) The judge failed to give sufficient weight to the substantial mitigating factors, including age and immaturity, the history of abuse, the appellant's mental health difficulties, his lack of previous sexual offending, his vulnerability in custody and the reports from the Mental Health Team and the psychiatrist;

(4) The imposition of consecutive sentences resulted in an excessive total term, contrary to the principle of totality; and

(5) The judge failed to have sufficient regard to the pertinent authorities of R v Ahmed

[2023] EWCA Crim 281

, R v Bowker

[2007] EWCA Crim 1608

, to the sentencing guidelines for children and young people and sexual offences, and to the principle of totality.

Discussion and Decision

[28]We consider that the starting point is the case of R v Ahmed which requires the court, when sentencing an adult for offences committed as a child, to consider what sentence would have been passed on a child of the age the person was when the offence was committed. This requires the court to have regard, amongst other things, to the maximum which would have applied in respect of the offending, as well as the type of sentence which would then have been available.

[29]In Ahmed, having reviewed all the relevant authorities, the Lord Chief Justice, giving the judgment of the court said this, under the heading "The Proper Approach21. … In our judgment, the applicable principles are clear. Those who are under the age of 18 when they offend have long been treated by Parliament, and by the courts, differently from those who are adults. That is because of a recognition that, in general, children are less culpable, and less morally responsible, for their acts than adults. They require a different approach to sentencing and are not to be treated as if they were just cut-down versions of adult offenders. The statutory provisions in force from time to time have frequently restricted the availability of custodial sentences for child offenders, whether by prohibiting them altogether for those below a certain age or, more commonly, by restricting on a basis of age the type and maximum length of custody in all but grave cases. All such provisions are in themselves a recognition by Parliament of the differing levels of culpability as between a child and an adult offender: that is one of the reasons why we are respectfully unable to agree with the distinction drawn in Forbes between cases where no custody would have been available, and cases where some form of custody (however far removed from modern sentencing powers) would have been available. There is, in our view, no reason why the distinction in levels of culpability should be lost merely because there has been an elapse of time which means that the offender is an adult when sentenced for offences committed as a child.

22. Section 59(1) of the Sentencing Code requires every court, when sentencing or dealing with an offender who was under the age of 18 at the time of the offending, to follow the Children guideline except in the rare case when the court considers it would be contrary to the interests of justice to do so … we are unable to see any justification in logic or principle for the submission that those paragraphs should only be followed where the offender has only recently attained adulthood. They remain relevant, and therefore to be followed, however many years have elapsed between the offending and the sentencing. That is because the passage of time does not alter the fact of the offender's young age at the time of the offending. It does not increase the culpability which he bore at that time… In our view, the application of the Children guideline requires sentencers to adopt a different approach between sentencing for historical offending committed as a child and sentencing for historical offending committed as an adult. That difference, and the resultant difference (which may be substantial) in the respective sentences, is in accordance with principle and reflects the special approach to the sentencing of child offenders." The Applicable Youth Sentencing Regime for offenders aged 11 to 13 at the time of the offending

[30]We set out the maximum sentences which would have applied in respect of the offending as well as the type of sentence which would then have been available.(1) The maximum sentence on counts 1 and 2 (Causing or Inciting a Child under 13 to Engage in Sexual Activity contrary to section 8 (1) of the Sexual Offences Act 2003) is 14 years' detention, pursuant to section 91 of the Powers of the Criminal Courts (Sentencing) Act 2000 ("PCC(S)A").

(2) The maximum sentences on counts 3 and 4 (Rape of a Child under 13, contrary to section 5 (1) of the Sexual Offences Act 2003) is detention for life.

(3) However, a sentence of detention under section 91 of the PCC(S)A was only available if the court is of the opinion that neither a youth rehabilitation order nor a detention and training order is suitable (section 91(3) of the PCC(S)A) and a sentence of detention could only be imposed in the Crown Court. In the context of this case that means passing a custodial sentence in excess of two years.

(4) A Detention and Training Order ("DTO") is available for a child offender who is 12 and 13 but only if he is a "persistent offender", to which we will return. The maximum term of a DTO is two years.

(5) A DTO is not available for a child of 11 years of age. It follows that the only custodial sentence available on count 1 was a sentence of detention pursuant to section 91 of the PCC(S)A.

(6) The other types of sentences which would have been available on each count in ascending order are: an Absolute or Conditional Discharge; a Reparation Order; a Financial Order; a Youth Rehabilitation Order ("YRO"); a YRO with Intensive Supervision and Surveillance ("ISS"); or Fostering. "Persistent offender"

[31]Guidance on the meaning of "persistent offender" is given in the Sentencing Children and Young People Sentencing Guideline as follows:

"6.4 Some sentences can only be imposed on children and young people if they are deemed a persistent offender. A child or young person must be classed as such for one of the following to be imposed… a detention and training order (DTO) when aged 12 – 14. 6.5 The term 'persistent offender' is not defined in statute but has been considered by the Court of Appeal. In general it is expected that the child or young person would have had previous contact with authority as a result of criminal behaviour. This includes previous findings of guilt as well as admissions of guilt such as restorative justice disposals and conditional cautions. … 6.8 When a child or young person is being sentenced in a single appearance for a series of separate, comparable offences committed over a short space of time then the court could justifiably consider the child or young person to be a persistent offender, despite the fact that there may be no previous findings of guilt. In these cases the court should consider whether the child or young person has had prior opportunity to address their offending behaviour before imposing one of the optional sentences available for persistent offenders only; if the court determines that the child or young person has not had an opportunity to address their behaviour and believes that an alternative sentence has a reasonable prospect of preventing re-offending then this alternative sentence should be imposed. … 6.10 Even where a child or young person is found to be a persistent offender, a court is not obliged to impose one of the optional sentences. The approach should still be individualistic and all other considerations still apply. Custodial sentences must be a last resort for all children and young people and there is an expectation that they will be particularly rare for children and young people aged 14 or under."

[32]The sentencing notes available to the judge made little, if any, reference to the question of what type of sentences would have been available for a child when the offences were committed; nor of the requirements which it was necessary to consider in deciding what sentence to impose. The judge was, in general terms, referred to the relevant sentencing guidelines on sentencing children and young people and other guidelines, but she was not assisted in the sentencing notes in the way that she should have been.

[33]It cannot be emphasised enough that at the time of the offending the appellant was extremely young. He was aged 11 at the time of the count 1 offence. A sentence of DTO would not have been available when he was 11. He was aged only 12 and 13 when he committed the further offences of which he was convicted. He had been indicted for substantially more offending against V2 – both the Rape of a Child under 13 on multiple occasions (count 5) and the rape of V2 on multiple occasions when V2 was over 13 and he (the appellant) was aged 14 and 15. He was acquitted of these further allegations. Having regard to the offending of which the appellant was convicted, we think it is likely that his case would have been tried in the Youth Court if that offending was the extent of the offending alleged against him. If he had been tried shortly after the offending, we think it would have been inevitable that he would have been sentenced in the Youth Court. In those circumstances the maximum custodial sentence for counts 2, 3 and 4 would have been a two-year Detention and Training Order. Such a sentence was not available for count 1. However, a sentence of Detention and Training Order would only have been available if there was a finding that the appellant was a persistent offender.

[34]We have considered the question of whether the offending in this case, which consists of at least eight separate incidents of sexual offences committed over a period of about two years, is sufficient in itself for the appellant, as a child, to have been considered to be a persistent offender. We have concluded that the previous absence of contact with authority as a result of criminal behaviour is likely to preclude such a finding. If he would not have been regarded as a persistent offender, then the court would have been required to look at non-custodial options.

[35]As we have observed, the judge did not make specific reference to what sentence would have been passed on a child of the age that the appellant was when the offences were committed. Instead, the judge approached the sentencing of the appellant on the basis of determining the sentence for an adult, with reference to the adult sentencing guideline, and then determining the reduction in the sentence for the age and level of maturity of the appellant at the time of the offending which in her judgment she determined to be 60 per cent of the adult sentence. That is not the approach dictated by the Children guideline.

[36]This was of course very serious offending. It has had real and lasting consequences for both V1 and V2. But if the judge had started by considering what sentence would have been passed on a child of the age the person was when the offences were committed, having regard, amongst other things, to the maximum which would have applied in respect of the offending as well as the type of sentence which would have been available, a very different outcome would have become apparent.

[37]In all the circumstances, and having considered the relevant guidelines and had regard to the approach to sentencing as set out in R v Ahmed, we have concluded that, without the assistance which she ought to have had from counsel, the judge fell into error in concluding that custodial sentences should be imposed. Had the judge approached the sentence with a greater regard to the approach in R v Ahmed she would have realised the very real limitations there were to the passing of a custodial sentence on an offender of the age of this appellant at the time of offending. On a proper consideration of the sentencing guidelines and the mitigating features, the offending ought to have been met with a non-custodial option.

[38]In those circumstances, we allow the appeal. We substitute a sentence of a 24 month community order with conditions that the appellant must complete an accredited programme (Building Choices) of 26 sessions, and 20 Rehabilitation Activity Requirement days. We do not impose a punitive requirement as there are exceptional circumstances relating to the appellant which would make it unjust in all the circumstances for the court to impose a requirement for the purpose of punishment, namely, that the appellant has served part of a custodial sentence whilst awaiting his appeal hearing. (Later)

LORD JUSTICE POPPLWELL:

[39]At the hearing of this appeal earlier today, and when Mr Sabiston (counsel for the appellant) was present, there arose a question as to the appropriate length of the notification requirement which, as imposed below and correctly recorded below in the light of the sentence then imposed was one for an indefinite duration. On that occasion there was imposed a Sexual Harm Prevention Order which was itself of indefinite length. Because at the conclusion of the hearing there was some uncertainty as to the appropriate provisions, the matter was left on the basis that Mr Sabiston would communicate with the court by way of written submissions in relation to the notification period.

[40]He has done so. He confirms that where the Sexual Harm Prevention Order is indefinite, then the notification period is driven by that and is also indefinite: see section 103G of the Sexual Offences Act 2003. However, in the written submission he invited the court, in the light of the adjustment to the sentence, to reduce the period of the Sexual Harm Prevention Order to one of five years.

[41]We have given that submission careful consideration. We are persuaded, given the age of the offender at the time of the offending and his age now, which is much greater, that it would be appropriate to impose a Sexual Harm Prevention Order of no more than five years, keeping in mind the principle that it must be for the minimum period necessary.

[42]The effect of that will be that the appeal will also be allowed to the extent of amending the length of the Sexual Harm Prevention Order from an indefinite order to one of five years. The effect will be that the notification requirements which apply automatically under section 104G will become notification requirements for five years, which can be recorded in the order of this court. _________________________________________ Epiq Europe Ltd hereby certify that the above is an accurate and complete record of the proceedings or part thereof. Lower Ground Floor, 46 Chancery Lane, London WV2A 1JE Tel No: 020 7404 1400 Email: rcj@epiqglobal.co.uk ______________________________