Ryan Bailey v R [2026] EWCA Crim 741

[2026] EWCA Crim 741Case No 202504388 A1
IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM CROWN COURT AT STAFFORD
His Honour Judge Mukherjee
21GN3100924
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 11/06/2026
Before
LORD JUSTICE POPPLEWELLMRS JUSTICE STEYNMR JUSTICE EYRE
Between
RYAN BAILEYAppellantREXRespondent
Mr B. Williams (instructed by Stevens LLP) for AppellantMr H. Gray (instructed by Crown Prosecution Service) for RespondentHearing Hearing date : 22 May 2026
Approved JudgmentThis judgment was handed down remotely at 10.30am on 11 June 2026 by circulation to the parties or their representatives by e-mail and by release to the National Archives..............................WARNING: reporting restrictions may apply to the contents transcribed in this document, particularly if the case concerned a sexual offence or involved a child. Reporting restrictions prohibit the publication of the applicable information to the public or any section of the public, in writing, in a broadcast or by means of the internet, including social media. Anyone who receives a copy of this transcript is responsible in law for making sure that applicable restrictions are not breached. A person who breaches a reporting restriction is liable to a fine and/or imprisonment. For guidance on whether reporting restrictions apply, and to what information, ask at the court office or take legal advice.The provisions of the Sexual Offences (Amendment) Act 1992 apply to this offence. 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.
[1]This is the judgment of the court to which all members have contributed.[2]On 7 February 2025, in the Crown Court at Stafford, the appellant pleaded guilty to an offence of rape of a child under 13 contrary to s.5(1) of the Sexual Offences Act 2003. Four counts (meeting a child following sexual grooming, sexual assault of a child under 13, causing or inciting a child under 13 to engage in sexual activity and possession of indecent photographs of a child) were ordered to lie on the file.[3]The appellant was sentenced on 2 October 2025, and at a subsequent slip rule hearing on 29 October 2025, in the Crown Court at Stafford, to a special custodial sentence of detention for an offender of particular concern of 3 years and 4 months’ detention in a Young Offender Institution with an extended licence period of 1 year (see s.265 Sentencing Act 2020). A Sexual Harm Prevention Order was made until further order. The appellant was aged 19 at the date of the offence, his plea and sentence.[4]The appellant appeals against the custodial sentence with leave of the single judge who also granted an extension of time.

The offence

[5]Section 5(1) of the Sexual Offences Act 2003 provides:
“A person commits an offence if – (a) he intentionally penetrates the vagina, anus or mouth of an other person with his penis, and (b) the other person is under 13.”
[6]It is no defence that the child consented or that the offender reasonably believed the child to be 16 years old or over: Attorney General’s reference (Nos 11 and 12 of 2012) [2012] EWCA Crim 119 [2013] 1 Cr App R (S) 43 (‘AG Ref 11 and 12’), [19]-[20]).

The appellant

[7]The offence took place on 23 December 2024. The appellant was then 19 years old (D.O.B. 26 November 2005). He has no previous convictions.[8]The appellant lived in foster care from 2016, when he was aged 10, until June 2024 when, aged 18, he moved into supported living accommodation. In February 2025, the appellant moved into a residential care home predominantly for people with mental health problems, where he received 1:1 support for 12 hours a day for his independent living skills, to manage his self-harm behaviours and assist with his medication.[9]The appellant has diagnoses of attention deficit hyperactivity disorder, depression and complex mental health issues stemming from childhood trauma. He has a long history of self-harm. He has not yet been formally assessed for a learning disability but a consultant forensic psychiatrist, Dr Lavanya Sebastian, reported that based on his vocabulary, gross cognitive function and reported difficulties with living skills, he came across as having at least a borderline or mild learning disability. To similar effect, the author of the pre-sentence report (‘PSR’) observed, having interviewed him and been provided by the appellant’s adult social care support worker with various reports (including the appellant’s care plans and mental capacity assessment record), that “professionals involved with Mr Bailey believe he has a learning disability where he presents with a mental age of someone considerably younger”.[10]The PSR describes concerns regarding his naivety, evidenced by the way in which he had been subjected to blackmail and financial exploitation by peers, and a mental capacity assessment which assessed him as “lacking capacity around safe use of the internet”. He is described as being “easily led and overly trusting”.

The facts

[11]The appellant’s written basis of plea included the assertion that he believed that the girl was aged 17, setting out the grounds for that belief. It was accepted by the prosecution. In AG Ref 11 and 12, the court observed that “the prosecutor bears a burden of responsibility to ensure that factual concessions to a basis of plea or mitigation of the offence are made only when justified…” ([34(1)]). A claim by a 19 year old man that he genuinely and reasonably believed a 12 year old girl was more than 16 years of age requires rigorous scrutiny. It is clear that, in this case, the concessions were carefully scrutinised. They are entirely consistent with the evidence and the reports regarding the appellant, and were quite properly accepted.[12]The victim was a 12 year old girl (‘V’). V told the appellant she was 17 years of age, and would be celebrating her 18th birthday on 29 December 2024. V told the appellant’s friends/associates that she was 17 years of age. On the day before the offence, V confirmed in a FaceTime call with the appellant’s care home manager that she was 17 years of age. V looked mature for her age. The appellant fell to be sentenced on the basis that at all material times he genuinely and reasonably believed V to be 17 years old.[13]V first made contact with the appellant through her TikTok account about three weeks prior to the offence. She and the appellant communicated daily via social media over the three weeks prior to 23 December 2024. The appellant described them as being in a boyfriend-girlfriend relationship from about three days after she first contacted him. During their communications, V “routinely sexualised conversations”. They exchanged sexual images.[14]The appellant and V first met on 23 December 2024 when, at V’s suggestion, they went together to Alton Towers. V had told her mother that she wanted to go to Drayton Manor Theme Park with a 15-year-old boy. In doing so, she lied about their planned destination as she did not wish to get into trouble for going too far away (Alton Towers being further from her home than Drayton Manor Theme Park), and also about the appellant’s age, as she knew he was 19 years old. V’s mother did not give her permission to go but V went anyway, leaving a note stating that she would answer her mobile phone at any time.[15]The appellant and V spent the day at Alton Towers on 23 December 2024, leaving at about 6.30pm. V kept in contact with her mother during the day but did not answer every call.[16]The appellant and V tried to get a bus back that evening but it did not arrive. The appellant was keen to return to his supported accommodation, as his phone had run out of charge and so he was unable to inform staff where he was. V told the appellant she did not have enough money for a taxi home but would have enough for a hotel. The appellant encouraged her to ring her mother to ask if she could be collected but she refused, saying her mum would “kill her”. So they stayed in a hotel in Uttoxeter. The appellant slept on the floor of their hotel room at V’s request.[17]V declined to give a formal interview or victim impact statement, and she was not interviewed under the achieving best evidence procedure. But when first questioned by the police she told them she and the appellant had kissed and, in a later interview, that he had also touched her. When the appellant’s phone was analysed the police found a photograph of V touching the appellant’s penis which he had sent to a friend and a video of V masturbating the appellant. Although on the appellant’s phone, the prosecution and (implicitly) the sentencing judge accepted that that video was taken by V of her own volition. In interview the appellant volunteered the information that V had given him oral sex, an admission which resulted in the charge of rape of a child under 13 to which he pleaded guilty. The appellant stated that he had not ejaculated. He had recorded the oral sex but deleted it straight away without sending it to anyone.[18]As recorded in the accepted basis of plea, V “instigated all of the sexual activity”. She “was a willing party and ‘consented’ to all of the sexual activity that they engaged in”. At all times, the appellant “believed he was engaging in lawful sexual activity”.[19]At 9.46pm on 23 December, V’s mother’s partner sent a text to the appellant’s phone in which he stated that V was 12 years old; however, the prosecution and the sentencing judge accepted that the appellant did not see that text prior to his arrest. At 10.45pm on 23 December, V told her mother she was getting a taxi home, although that was not the case and she did not arrive home that evening. On 24 December 2024, V’s mother reported her missing. The police identified the appellant through social media checks. When the appellant and V arrived at the train station in her home town at 1.15pm on 24 December 2024, police officers were waiting for them and the appellant was arrested.

The Sentencing Council’s Definitive Guideline for the offence

[20]Section 59(1) of the Sentencing Code provides: “Every court—(a) must, in sentencing an offender, follow any sentencing guidelines which are relevant to the offender's case, and(b) must, in exercising any other function relating to the sentencing of offenders, follow any sentencing guidelines which are relevant to the exercise of the function, unless the court is satisfied that it would be contrary to the interests of justice to do so.” (a) must, in sentencing an offender, follow any sentencing guidelines which are relevant to the offender's case, and (b) must, in exercising any other function relating to the sentencing of offenders, follow any sentencing guidelines which are relevant to the exercise of the function,[21]The Guideline for the offence of rape of a child under 13 (‘the Guideline’) notes: “When dealing with the statutory offence of rape of a child under 13, the court may be faced with a wide range of offending behaviour. Sentencers should have particular regard to the fact that these offences are not only committed through force or fear of force but may include exploitative behaviour towards a child which should be considered to indicate high culpability. This guideline is designed to deal with the majority of offending behaviour which deserves a significant custodial sentence; the starting points and ranges reflect the fact that such offending merits such an approach. There may also be exceptional cases, where a lengthy community order with a requirement to participate in a sex offender treatment programme may be the best way of changing the offender’s behaviour and of protecting the public by preventing any repetition of the offence. This guideline may not be appropriate where the sentencer is satisfied that on the available evidence, and in the absence of exploitation, a young or particularly immature defendant genuinely believed, on reasonable grounds, that the victim was aged 16 or over and that they were engaging in lawful sexual activity. Sentencers are reminded that if sentencing outside the guideline they must be satisfied that it would be contrary to the interests of justice to follow the guideline.” (Underlining added.)[22]There are three categories of harm. Category 3 applies where none of the factors in categories 1 or 2 are present. There are two categories of culpability. One of the culpability A factors is “Sexual images of victim recorded, retained, solicited or shared”. Culpability category B applies where none of the factors in category A are present. For a category 3A offence, the starting point is 10 years’ custody and the range is 8-13 years’ custody. For a category 3B offence, which is the lowest category in the guideline, the starting point is 8 years’ custody and the category range is 6-11 years’ custody.

The sentence

[23]The sentencing judge referred to the passage we have underlined in paragraph 20 above, but rejected the submission made in mitigation by the appellant’s Counsel that it would not be in the interests of justice to apply the Guideline.[24]It was common ground that, applying the Guideline, the offence fell within harm category 3 as there was no evidence of harm beyond that which is inherent in the offence. A single culpability A factor applied, based on the appellant’s admission that he had recorded the oral sex, although he had not retained or shared that recording. The starting point for a category 3A offence would have been 10 years’ custody.[25]However, the judge assessed, by reference to the PSR (including the addendum) and the psychiatric report, that the appellant’s culpability was reduced so that the offence should be placed in category 3B, giving a lower starting point of 8 years’ custody. The judge further reduced the notional sentence to 5 years’ custody (that is, taking it one year below the bottom of the category range), taking into account the appellant’s personal mitigation.[26]The judge gave the appellant full credit for his guilty plea. He again took into account what was said about the appellant in the PSR and psychiatric report when discounting the sentence by one-third rather than the 25% to which the appellant would ordinarily have been entitled, given the timing of his plea. That resulted in a sentence of 3 years 4 months’ detention in a young offenders’ institution. The judge imposed, as he was required to, an extended licence period of 1 year: s.265(2) of the Sentencing Act 2020.

The Grounds of Appeal

[27]The appellant contends that the sentence of 3 years and 4 months’ detention was manifestly excessive as: i) The prosecution had accepted that the appellant genuinely believed that the victim was over the age of 16; ii) V had told others that she was 17 and had confirmed this in a FaceTime call to the appellant’s social worker, and so the appellant’s belief was reasonable; iii) The reports made reference to the appellant’s immaturity, his diagnosis of ADHD and a probable learning difficulty; iv) The prosecution accepted that V had been the instigator of the sexualisation of their relationship and the sexual activity which had taken place between them; v) There had been no element of coercion or of the appellant taking advantage of V’s vulnerability. The appellant had been engaging in what he reasonably thought was legal sexual activity between two parties able to give their consent; and vi) In combination, these factors presented a situation very different to those envisaged in the sentencing guideline, making it exceptional.

Response

[28]The respondent contests this appeal. The prosecution submit that the sentence is not manifestly excessive. The judge paid due regard to the guideline and expressly noted the circumstances in which strict application of it may not be appropriate. Having applied his mind to the issue, the judge was not satisfied it was in the interests of justice to sentence outside the guideline. The judge adopted a thorough and structured approach to the sentencing exercised. He paid significant regard to the PSR and psychiatric report, recognising the strong offence-based mitigation, in moving down a category and the further reduction he made. He sentenced in accordance with the basis of plea. The sentence imposed was one which balanced the need to protect those under the age of 13, the strong element of deterrence in sentencing for sexual offences committed against young children (whether experienced, willing, or not) and the mitigating circumstances and the appellant’s own vulnerabilities.[29]Finally, the respondent contends that this offending was opportunistic rather than in the context of a relationship, and so more serious: R v Mascall (Jachin Joshua) [2022] EWCA Crim 483 [2022] 2 Cr App R (S) 47 (‘Mascall’), [24].

The authorities

[30]The two key authorities of relevance to this appeal are AG Ref 11 and 12 and Mascall.[31]In AG Ref 11 and 12 the court gave guidance on the relevant considerations for a judge when sentencing for offences of rape of a child under 13. The court referred at [31] to Attorney General’s References Nos.

(S) 110 at [11]-[14]:

“11. When considering culpability, therefore, actual consent is recognised as being capable of being a mitigating factor. However, careful consideration should be given in all cases, but particularly where there is a significant discrepancy in age, to the extent to which ostensible consent has been obtained opportunistically, or by means of coercion, which may be subtle, or exploitation, which will be particularly relevant in cases where there may have been an element of grooming. In those cases ostensible consent may well have little value as mitigation. 12. We use the word ‘opportunistic’ to describe those occasions when the sexual activity does not occur in any form of relationship, which is a matter referred to in [9] of Corran [2005] 2 Cr App R (S) 73 (page 453). These will usually be occasions where the sexual activity is likely to be solely for the gratification of the offender. Although in such cases there will not have been the aggravating feature of planning, the need for protection of the child, from both the predator and from himself or herself, is particularly marked. Then, as in all cases, the difference in age between the offender and the child will be of great significance. 13. As far as apparent age is concerned, the Definitive Guideline only refers to it as being capable of being a mitigating factor in the case of a young offender, that is an offender under the age of 18, where such an offender reasonably believes the other person to be 16 or over. … It seems to us that inherent in this approach is the view that any adult who embarks on sexual activity with a young person does so at their own risk. Just as anyone in relation to consent has to give due consideration as to whether the victim was able to or did in fact give consent, failure to give due consideration to age will in itself be a substantial element in the culpability of the offence. However, that does not mean that a reasonable belief that the victim is 16 or over cannot be a mitigating factor for an adult, that is a person over the age of 18. But the older the offender the less relevant a mistake as to age, even if reasonably held, will be.”
[32]At [14] of Fenn and Foster, having considered the guideline for penetrative sexual activity with a person under the age of 16, contrary to s.9 of the Sexual Offences Act, if the offender does not reasonably believe that the other person is 16 or over, the Court said:
“Bearing in mind the legislative purpose of creating the absolute offence under section 5 of the Sexual Offences Act for victims under 13, this would suggest that 4 years would be the minimum subject to plea and mitigation in the case of a young adult even where there is ostensible consent and reasonable belief that the victim was 16 or over. We would not wish however to exclude the possibility of a non-custodial sentence in exceptional circumstances.”
[33]In AG Ref 11 and 12 the Court explained at [32] that in Fenn and Foster the court was not suggesting that the starting point and sentencing ranges for s.9 offences would apply to convictions for s.5 offences merely because the victim gave “ostensible consent” and the offender reasonably believed the victim was aged 16 or over. Rather:
“The Vice President was pointing out only that the guideline for section 9 offences gave an indication that, in the case of a young adult who reasonably believed the victim was aged 16 or over, where the sexual activity was consensual, the minimum starting point would be 4 years. It remained necessary carefully to consider all the circumstances, including the nature of the encounter with the victim and the respective ages of the offender and the victim (paragraphs 11-13).”
[34]In AG Ref 11 and 12, the court observed that while “an offence contrary to section 5 will always be a serious offence, section 5 embraces a wide range of seriousness, from forced non-consensual sexual intercourse between a man and a very young victim to consensual experimental sexual intercourse between an immature 18 year old and a sexually experienced victim who he reasonably believed to be aged 16 or over” ([34]). The court identified as relevant considerations at [34]:
“(2) There is a strong element of deterrence in sentencing for sexual offences committed against young children, whether they are sexually experienced and ‘willing’ or not. They are, by reason of their young age, vulnerable to exploitation and require protection, sometimes from themselves. It can be assumed that, whatever the circumstances, there is likely to be considerable long-term harm caused by such offences; (3) Exploitative sexual behaviour towards a child under 13 without consideration for the vulnerability of that child may be just as serious as submission obtained by the use of force or the threat of force. ‘Ostensible consent’ and ‘willingness’ are terms which, in the context of offences against the young in particular, are susceptible to misunderstanding and, even if accurately used, are liable to obscure the true nature of the encounter between the offender and the victim (see Fenn and Foster at para 11); (4) The culpability of the offender is measured in part by his own understanding of the harm he was causing or was likely to cause. … We repeat the advice of the court in Corran at para 8 that the respective ages of the offender and the victim is an important factor in the assessment of seriousness; (5) … If the judge decides to sentence outside the guideline range that decision should be justified and explained.”
[35]On the facts, the court allowed the Attorney General’s reference, holding that sentences of 40 months’ detention imposed on two offenders had been unduly lenient and substituting sentences of 7 years’ detention. The 20 year old offenders did not care how old their 11 year old victim was, made no enquiry, and could not have thought she was older than 14. Their offences were exploitative. This was a group activity, involving two adults jointly taking advantage of a child in degrading circumstances, in the presence of two other males, while recording the sexual activity. The harm done would be long-lasting, perhaps permanent.[36]In Mascall the offender pleaded guilty to three counts of rape of a child under 13, contrary to s.5 of the Sexual Offences Act 2003. He was 19 and of good character at the time of the offences. The victim was 12 years old. The three offences occurred during a 36 hour period that the offender and the child (EM) spent travelling around various parts of London. EM told the offender she was 20 years of age. While he thought she might be younger than 20, the prosecution accepted that he genuinely and reasonably believed she was at least 16.[37]The offender was sentenced in the Crown Court to a community order, in circumstances where he had served the equivalent of a sentence of 14 months by reference to his time on remand and was entitled to full credit for his guilty pleas. The Solicitor General referred the sentence to the Court of Appeal as unduly lenient.[38]This court noted at [26]: “In Attorney General’s Reference Nos 74 and 83 the court quoting with approval from paragraphs 6 to 10 of the judgment in Corran [2005] 2 Cr App R (S) 73 said at [7]: ‘Although absence of consent is not an ingredient of the offence, presence of consent is, in our judgment, material in relation to sentence, particularly in relation to young defendants. The age of the defendant, of itself and when compared with the age of the victim, is also an important factor. A very short period of custody is likely to suffice for a teenager where the other party consents. In exceptional cases … a non-custodial sentence may be appropriate for a young defendant.’ The court went on to say at [15] that, given the added emphasis on the protection of the young in the relevant provisions of the Sexual Offences Act 2003, the sentence to which reference was made in Corran was only likely to apply to an offender over the age of 18 in very special circumstances. These observations are reflected in the wording of the Sentencing Council Definitive Guideline. There will be exceptional cases. Even where the case is not exceptional, the guideline may not apply where there is genuine belief that the victim was aged 16 or over.” ‘Although absence of consent is not an ingredient of the offence, presence of consent is, in our judgment, material in relation to sentence, particularly in relation to young defendants. The age of the defendant, of itself and when compared with the age of the victim, is also an important factor. A very short period of custody is likely to suffice for a teenager where the other party consents. In exceptional cases … a non-custodial sentence may be appropriate for a young defendant.’[39]The court endorsed the point that “a child aged 12 cannot lawfully consent” so any “consent given is ‘consent’, to be put in italics”, observing at [27]:
“The requirement to protect children under 13 from themselves is just as important when the child allows the offender to believe that she is over 16.”
[40]The features that this court considered important in Mascall were that, on the facts:(i) EM was “a highly vulnerable child” and the strong element of deterrence was significant;(ii) the harm caused by the offender (of which there was evidence in victim statements from both EM and her mother) was substantial (putting it in harm category 2);(iii) the relationship between the offender and EM “can only be categorised as opportunistic”;(iv) the offender “was not markedly immature for his years”, indeed those who knew him described “rather the reverse”;(v) the aggravating features (ejaculation; no use of condom; location of offending) remained significant even if the case did not fall to be sentenced within the guideline category range, and any sentence had to reflect the fact EM had been raped on three separate occasions; and(vi) there was an element of risk taking by the offender in believing EM was 16 or over (e.g. not questioning why they did not go to the flat she claimed to live in or the car she claimed to have).[41]The Solicitor General did not resile from the position adopted by the prosecution in relation to the offender’s belief as to EM’s age. As a consequence, the Solicitor General accepted that the guideline was not “appropriate”, and the court was “bound to deal with his application on that basis”. However, it was not an exceptional case of the kind referred to in the Guideline. The court held that a conclusion that the Guideline is not “appropriate” does not require the sentencing judge “to abandon it altogether and to approach the sentencing exercise from first principles”. The correct approach is ([30]): “to consider the categories of harm and culpability and then the aggravating and mitigating factors as they appear in the guideline in order to reach an assessment of the overall seriousness of the case but not to use the starting points and category ranges other than as reference points of relative seriousness”.[42]There were two harm category 2 factors present (namely that it was a sustained incident and there was additional degradation involved) which were not affected by the offender’s belief as to EM’s age. In respect of culpability, the court observed at [31]:
“It would be wrong to say that in some way the offender’s culpability was within B of the guideline. That would fail to give proper weight to the offender’s belief. A careful assessment of the effect of the offender’s belief is necessary. … Taken in the round the offender’s culpability lay in his willingness to accept without more what EM told him, his failure to reflect sufficiently or at all as to what they were doing and where they were doing it, his failure to re-evaluate the position as time went on and his lack of care for EM when he was engaging in sexual activity with her when he knew very little about her true circumstances.”
[43]Exploitation in the context of this type of sexual offending “involves the use of the victim for the offender’s sexual advantage” and “implies an imbalance of power between the offender and his victim”. The court did not find “exploitation in the strict sense” but there was a “culpable lack of responsibility on the part of the offender”.[44]The Solicitor General relied on Fenn and Foster for the proposition that for a s.5 offence committed by a young adult, in circumstances where there was ostensible consent and a reasonable belief the victim was 16 or over, there was a minimum starting point of 4 years’ custody. The court in Mascall held:
“We are concerned with a different guideline to that considered in 2008. However, we agree that the judgment in the earlier Reference is a useful guide. It demonstrates that, other than in an exceptional case, a significant custodial sentence will be appropriate. The length of any such sentence will vary depending on the circumstances. It is not possible to provide any more detailed guidance since facts in these cases will vary greatly.”
[45]This court substituted a custodial term of 36 months, after giving full credit for the offender’s guilty plea and reducing the provisional sentence by 6 months taking into account the impact of Covid-19 prison conditions.

Analysis

[46]This was a difficult sentencing exercise. We agree with Counsel for the Respondent that the sentencing judge applied his mind carefully to the issues and adopted a thorough and structured approach to the sentencing exercise. In our judgement, the sentencing judge was right to reject the submission that it was the kind of exceptional case in which a community order could be imposed.[47]An offence contrary to section 5 will always be a serious offence. There were essentially two reasons why a custodial sentence was necessary in this case. First, to reflect the harm to a child that is inherent in an offence of this nature. Secondly, to protect children from such offences by acting as a deterrent to those who may irresponsibly accept a child’s assertion that they are of an age to consent. This was the consideration identified at [34(2)] of AG Ref 11 and 12 and [28(i)] of Mascall. The deterrent element is important even if it may not have an impact on those in precisely the same circumstances as this appellant. Those who are to be deterred include those whose belief involves an element of risk taking by acting in the irresponsible way described in [31] of Mascall which we have quoted above. As with all deterrent elements of sentencing, where required, it may involve a more severe sentence than the circumstances of the offender’s own particular offending might warrant in the absence of a need for deterrence. This applies not only to whether the circumstances are so exceptional as to justify a non-custodial sentence, but also to the length of a custodial sentence where they do not.[48]However, it is clear that the facts fell squarely within those where the Guideline states that it “may not be appropriate” to apply it. There was strong evidence that the appellant is a particularly immature, naïve, trusting and easily led 19-year-old, with at least a borderline learning disability. He not only genuinely believed that V was 17 years old, he had reasonable grounds for his belief in circumstances where his support worker had spoken to her via a video platform the day before their trip to Alton Towers, she had told the support worker she was 17, and no concerns or doubts as to her age had been raised with him. There was no culpable lack of responsibility, still less any element of exploitation on the part of the appellant. The excursion to Alton Towers, the sexual conversations beforehand, and the sexual activity on 23 December 2024, were instigated by V, and the appellant genuinely and reasonably believed that he and V were engaging in lawful sexual activity. In this context, and given his understanding they were in a relationship (albeit a new one), the appellant’s behaviour cannot fairly be characterised as “opportunistic”.[49]The sentencing judge said that even on his own version the appellant took advantage of someone younger than him. However, if his belief as to V’s date of birth had been correct, the age difference would have been minimal, and the assertion that he took advantage of V is not consistent with his accepted basis of plea that V suggested the trip to Alton Towers and instigated all sexual communication and sexual activity between them, nor with his expressed desire to return home that evening and for her parents to pick them up.[50]In our judgement, although the Guideline says only that it “may” not be appropriate where the sentencer is satisfied of such facts, in an unusual case such as this where the specified criteria so clearly applied, in the absence of any countervailing reason for finding that the Guideline was appropriate, the sentencing judge was bound to conclude that it would be contrary to the interests of justice to apply the starting points and category ranges given in the Guideline.[51]As the court explained in Mascall, in such cases the correct approach is first to consider the categories of harm and culpability, and then the aggravating and mitigating factors, as they appear in the Guideline. But the purpose of doing so is to reach an assessment of the overall seriousness of the case, not to use the starting points and category ranges other than as reference points of relative seriousness.[52]This case fell within harm category 3. There was no suggestion before the court below or on appeal that any of the factors in category 1 or 2 apply. In the absence of any evidence of harm to V, the assumed harm is that which is inherent in an offence of this nature.[53]As the appellant recorded sexual images of V, a single factor falling within culpability category A was present. However, given the appellant’s genuine and reasonable belief that he and V were engaging in lawful sexual activity, including when they both took images of their sexual activity, and given that (unusually in the context of a s.5 offence) there was no power imbalance in which he took advantage of V, nor any element of exploitation or culpable lack of responsibility, the recording of sexual images does not increase his culpability.[54]As in Mascall, it would be wrong to say that the appellant’s culpability was within category B of the Guideline. Moreover, unlike in Mascall, in the unusual circumstances of this case, it is hard to discern any real culpability on his part beyond the committing of this strict liability offence. It is of particular significance that the offender’s care home manager was able to assess V’s age and demeanour in a FaceTime call, in the offender’s presence, and must themself have been satisfied that there were no unacceptable risks in the offender taking V out..[55]It is not suggested that the sentencing judge made any error in his identification of aggravating and mitigating factors. There were no aggravating factors. The mitigation available to him was his lack of any previous convictions, age, immaturity, his complex mental health problems, ADHD and probable learning disorder. Those vulnerabilities, together with his history of resort to self-harm when under stress, were such that, as the PSR and psychiatric report identified, custody would be more challenging for the appellant than for most prisoners.[56]If the sentencing judge had been right to find that it was appropriate to apply the Guideline, then in our view the approach he took could not have been faulted. However, for the reasons we have given, this was a case in which it had to be recognised that the starting point should not have been 10 years’ or 8 years’ detention, nor should the range for category 3A or 3B have been applied. As a result of applying the starting points and ranges given in the Guideline, and despite the significant reductions that the sentencing judge made in recognition of the mitigation available to the appellant, the sentence of 5 years’ prior to reduction for his guilty plea was manifestly excessive.[57]Weighing the seriousness of any offence of rape of a child under 13, the inherent harm, the protective and deterrent effect of imposing a significant custodial sentence, and our conclusions as to the appellant’s lack of culpability, we consider that the notional sentence after a trial should have had a custodial element of 3 years’ detention. Giving the appellant full credit for his plea, as the sentencing judge rightly did in the circumstances, we substitute a sentence with a custodial term of 2 years’ detention and the mandatory extended licence period of 1 year.

Conclusion

[58]The appeal is allowed. The appellant’s sentence of 3 years and 4 months’ detention is quashed. We substitute a special custodial sentence of detention for an offender of particular concern of 2 years’ detention in a Young Offender Institution with an extended licence period of 1 year.