DEFINITIVE GUIDELINE. Sexual Offences Definitive Guideline

Transcription

1 DEFINITIVE GUIDELINE Sexual Offences Definitive Guideline

2 Contents Applicability of guideline 7 Rape and assault offences 9 Rape Sexual Offences Act 2003 (section 1) 9 Assault by penetration Sexual Offences Act 2003 (section 2) 13 Sexual assault Sexual Offences Act 2003 (section 3) 17 Causing a person to engage in sexual activity without consent Sexual Offences Act 2003 (section 4) 21 Offences where the victim is a child 27 Rape of a child under 13 Sexual Offences Act 2003 (section 5) 27 Assault of a child under 13 by penetration Sexual Offences Act 2003 (section 6) 33 Sexual assault of a child under 13 Sexual Offences Act 2003 (section 7) 37 Causing or inciting a child under 13 to engage in sexual activity Sexual Offences Act 2003 (section 8) 41 Sexual activity with a child Sexual Offences Act 2003 (section 9) 45 Causing or inciting a child to engage in sexual activity Sexual Offences Act 2003 (section 10) 45 Sexual activity with a child family member Sexual Offences Act 2003 (section 25) 51 Inciting a child family member to engage in sexual activity Sexual Offences Act 2003 (section 26) 51 Engaging in sexual activity in the presence of a child Sexual Offences Act 2003 (section 11) 57

3 2 Sexual Offences Definitive Guideline Causing a child to watch a sexual act Sexual Offences Act 2003 (section 12) 57 Arranging or facilitating the commission of a child sex offence Sexual Offences Act 2003 (section 14) 61 Meeting a child following sexual grooming Sexual Offences Act 2003 (section 15) 63 Abuse of position of trust: sexual activity with a child Sexual Offences Act 2003 (section 16) 67 Abuse of position of trust: causing or inciting a child to engage in sexual activity Sexual Offences Act 2003 (section 17) 67 Abuse of position of trust: sexual activity in the presence of a child Sexual Offences Act 2003 (section 18) 71 Abuse of position of trust: causing a child to watch a sexual act Sexual Offences Act 2003 (section 19) 71 Indecent images of children 75 Possession of indecent photograph of child Criminal Justice Act 1988 (section 160) 75 Indecent photographs of children Protection of Children Act 1978 (section 1) 75 Exploitation offences 81 Causing or inciting prostitution for gain Sexual Offences Act 2003 (section 52) 81 Controlling prostitution for gain Sexual Offences Act 2003 (section 53) 81 Keeping a brothel used for prostitution Sexual Offences Act 1956 (section 33A) 85 Causing or inciting sexual exploitation of a child Sexual Offences Act 2003 (section 48) 89 Controlling a child in relation to sexual exploitation Sexual Offences Act 2003 (section 49) 89 Arranging or facilitating sexual exploitation of a child Sexual Offences Act 2003 (section 50) 89

4 Sexual Offences Definitive Guideline 3 Paying for the sexual services of a child Sexual Offences Act 2003 (section 47) 95 Trafficking people for sexual exploitation Sexual Offences Act 2003 (sections 59A) 99 Offences against those with a mental disorder 103 Sexual activity with a person with a mental disorder impeding choice Sexual Offences Act 2003 (section 30) 103 Causing or inciting a person, with a mental disorder impeding choice, to engage in sexual activity Sexual Offences Act 2003 (section 31) 103 Engaging in sexual activity in the presence of a person with mental disorder impeding choice Sexual Offences Act 2003 (section 32) 109 Causing a person, with mental disorder impeding choice, to watch a sexual act Sexual Offences Act 2003 (section 33) 109 Inducement, threat or deception to procure sexual activity with a person with a mental disorder Sexual Offences Act 2003 (section 34) 113 Causing a person with a mental disorder to engage in or agree to engage in sexual activity by inducement, threat or deception Sexual Offences Act 2003 (section 35) 113 Engaging in sexual activity in the presence, procured by inducement, threat or deception, of a person with a mental disorder Sexual Offences Act 2003 (section 36) 117 Causing a person with a mental disorder to watch a sexual act by inducement, threat or deception Sexual Offences Act 2003 (section 37) 117 Care workers: sexual activity with a person with a mental disorder Sexual Offences Act 2003 (section 38) 121 Care workers: causing or inciting sexual activity Sexual Offences Act 2003 (section 39) 121 Care workers: sexual activity in the presence of a person with a mental disorder Sexual Offences Act 2003 (section 40) 125 Care workers: causing a person with a mental disorder to watch a sexual act Sexual Offences Act 2003 (section 41) 125

5 4 Sexual Offences Definitive Guideline Other sexual offences 129 Exposure Sexual Offences Act 2003 (section 66) 129 Voyeurism Sexual Offences Act 2003 (section 67) 133 Sex with an adult relative: penetration Sexual Offences Act 2003 (section 64) 137 Sex with an adult relative: consenting to penetration Sexual Offences Act 2003 (section 65) 137 Administering a substance with intent Sexual Offences Act 2003 (section 61) 141 Committing an offence with intent to commit a sexual offence Sexual Offences Act 2003 (section 62) 145 Trespass with intent to commit a sexual offence Sexual Offences Act 2003 (section 63) 147 Guidance regarding offences committed by offenders under the age of 18 (no definitive guidelines are included) 151 Child sex offences committed by children or young persons (sections 9 12) (offender under 18) Sexual Offences Act 2003 (section 13) 151 Sexual activity with a child family member (offender under 18) Sexual Offences Act 2003 (section 25) 151 Inciting a child family member to engage in sexual activity (offender under 18) Sexual Offences Act 2003 (section 26) 151

6 Sexual Offences Definitive Guideline 5 Annex A: Ancillary orders Automatic orders on conviction Annex B: Approach to sentencing historic sexual offences 155 Annex C: Historic offences 157 Annex D: Fine bands and community orders 160 Crown copyright 2013 You may re-use this information (not including logos) free of charge in any format or medium, under the terms of the Open Government Licence. To view this licence, visit or psi@nationalarchives.gsi.gov.uk

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8 Sexual Offences Definitive Guideline 7 Applicability of guideline I n accordance with section 120 of the Coroners and Justice Act 2009, the Sentencing Council issues this definitive guideline. It applies to all offenders aged 18 and older, who are sentenced on or after 1 April Section 125(1) of the Coroners and Justice Act 2009 provides that when sentencing offences committed on or after 6 April 2010: Every court (a) must, in sentencing an offender, follow any sentencing guideline which is 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. This guideline applies only to offenders aged 18 and older. General principles to be considered in the sentencing of youths are in the Sentencing Guidelines Council s definitive guideline, Overarching Principles Sentencing Youths. Structure, ranges and starting points For the purposes of section 125(3) (4) of the Coroners and Justice Act 2009, the guideline specifies offence ranges the range of sentences appropriate for each type of offence. Within each offence, the Council has specified different categories which reflect varying degrees of seriousness. The offence range is split into category ranges sentences appropriate for each level of seriousness. The Council has also identified a starting point within each category. s define the position within a category range from which to start calculating the provisional sentence. s apply to all offences within the corresponding category and are applicable to all offenders, in all cases. Once the starting point is established, the court should consider further aggravating and mitigating factors and previous convictions so as to adjust the sentence within the range. s and ranges apply to all offenders, whether they have pleaded guilty or been convicted after trial. Credit for a guilty plea is taken into consideration only at step four in the decision making process, after the appropriate sentence has been identified. Information on ancillary orders is set out at Annex A on page 153. Information on historic offences is set out at Annexes B and C on pages 155 and 157. Information on community orders and fine bands is set out at Annex D on page 160.

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10 Sexual Offences Definitive Guideline 9 Sexual Offences Act 2003 (section 1) Triable only on indictment Maximum: Life imprisonment Offence range: 4 19 years custody This is a serious specified offence for the purposes of sections 224 and 225(2) (life sentence for serious offences) of the Criminal Justice Act For offences committed on or after 3 December 2012, this is an offence listed in Part 1 of Schedule 15B for the purposes of sections 224A (life sentence for second listed offence) of the Criminal Justice Act For convictions on or after 3 December 2012 (irrespective of the date of commission of the offence), this is a specified offence for the purposes of section 226A (extended sentence for certain violent or sexual offences) of the Criminal Justice Act RAPE Rape

11 10 Sexual Offences Definitive Guideline STEP ONE Determining the offence category RAPE The court should determine which categories of harm and culpability the offence falls into by reference only to the tables below. Offences may be of such severity, for example involving a campaign of rape, that sentences of 20 years and above may be appropriate. Culpability Harm Category 1 Category 2 The extreme nature of one or more category 2 factors or the extreme impact caused by a combination of category 2 factors may elevate to category 1 Severe psychological or physical harm Pregnancy or STI as a consequence of offence Additional degradation/humiliation Abduction Prolonged detention/sustained incident Violence or threats of violence (beyond that which is inherent in the offence) Forced/uninvited entry into victim s home Victim is particularly vulnerable due to personal circumstances* * for children under 13 please refer to the guideline on page 27 Category 3 Factor(s) in categories 1 and 2 not present A Significant degree of planning Offender acts together with others to commit the offence Use of alcohol/drugs on victim to facilitate the offence Abuse of trust Previous violence against victim Offence committed in course of burglary Recording of the offence Commercial exploitation and/or motivation Offence racially or religiously aggravated Offence motivated by, or demonstrating, hostility to the victim based on his or her sexual orientation (or presumed sexual orientation) or transgender identity (or presumed transgender identity) Offence motivated by, or demonstrating, hostility to the victim based on his or her disability (or presumed disability) B Factor(s) in category A not present STEP TWO and category range Having determined the category, the court should use the corresponding starting points to reach a sentence within the category range on the next page. The starting point applies to all offenders irrespective of plea or previous convictions. Having determined the starting point, step two allows further adjustment for aggravating or mitigating features set out on the next page. A case of particular gravity, reflected by multiple features of culpability or harm in step one, could merit upward adjustment from the starting point before further adjustment for aggravating or mitigating features, set out on the next page.

12 A B 15 years custody 12 years custody years custody years custody 10 years custody 8 years custody 9 13 years custody 7 9 years custody 7 years custody 5 years custody 6 9 years custody 4 7 years custody Category 1 Category 2 Category 3 The table below contains a non-exhaustive list of additional factual elements providing the context of the offence and factors relating to the offender. Identify whether any combination of these, or other relevant factors, should result in an upward or downward adjustment from the starting point. In particular, relevant recent convictions are likely to result in an upward adjustment. In some cases, having considered these factors, it may be appropriate to move outside the identified category range. Aggravating factors Attempts to dispose of or conceal evidence Statutory aggravating factors Commission of offence whilst under the influence of alcohol or drugs Previous convictions, having regard to a) the nature of the offence to which the conviction relates and its relevance to the current offence; and b) the time that has elapsed since the conviction Mitigating factors Offence committed whilst on bail No previous convictions or no relevant/recent convictions Other aggravating factors Remorse Specific targeting of a particularly vulnerable victim Previous good character and/or exemplary conduct* Ejaculation (where not taken into account at step one) Age and/or lack of maturity where it affects the responsibility of the offender Blackmail or other threats made (where not taken into account at step one) Location of offence Timing of offence Use of weapon or other item to frighten or injure Victim compelled to leave their home (including victims of domestic violence) Failure to comply with current court orders Offence committed whilst on licence Exploiting contact arrangements with a child to commit an offence Presence of others, especially children Any steps taken to prevent the victim reporting an incident, obtaining assistance and/or from assisting or supporting the prosecution Mental disorder or learning disability, particularly where linked to the commission of the offence * Previous good character/exemplary conduct is different from having no previous convictions. The more serious the offence, the less the weight which should normally be attributed to this factor. Where previous good character/exemplary conduct has been used to facilitate the offence, this mitigation should not normally be allowed and such conduct may constitute an aggravating factor. In the context of this offence, previous good character/exemplary conduct should not normally be given any significant weight and will not normally justify a reduction in what would otherwise be the appropriate sentence. RAPE Sexual Offences Definitive Guideline 11

13 12 Sexual Offences Definitive Guideline STEP THREE RAPE Consider any factors which indicate a reduction, such as assistance to the prosecution The court should take into account sections 73 and 74 of the Serious Organised Crime and Police Act 2005 (assistance by defendants: reduction or review of sentence) and any other rule of law by virtue of which an offender may receive a discounted sentence in consequence of assistance given (or offered) to the prosecutor or investigator. STEP FOUR Reduction for guilty pleas The court should take account of any potential reduction for a guilty plea in accordance with section 144 of the Criminal Justice Act 2003 and the Guilty Plea guideline. STEP FIVE Dangerousness The court should consider whether having regard to the criteria contained in Chapter 5 of Part 12 of the Criminal Justice Act 2003 it would be appropriate to award a life sentence (section 224A or section 225(2)) or an extended sentence (section 226A). When sentencing offenders to a life sentence under these provisions, the notional determinate sentence should be used as the basis for the setting of a minimum term. STEP SIX Totality principle If sentencing an offender for more than one offence, or where the offender is already serving a sentence, consider whether the total sentence is just and proportionate to the offending behaviour. STEP SEVEN Ancillary orders The court must consider whether to make any ancillary orders. The court must also consider what other requirements or provisions may automatically apply. Further information is included at Annex A on page 153. STEP EIGHT Reasons Section 174 of the Criminal Justice Act 2003 imposes a duty to give reasons for, and explain the effect of, the sentence. STEP NINE Consideration for time spent on bail The court must consider whether to give credit for time spent on bail in accordance with section 240A of the Criminal Justice Act 2003.

14 Assault by penetration Sexual Offences Act 2003 (section 2) Triable only on indictment Maximum: Life imprisonment Offence range: Community order 19 years custody This is a serious specified offence for the purposes of sections 224 and 225(2) (life sentence for serious offences) of the Criminal Justice Act For offences committed on or after 3 December 2012, this is an offence listed in Part 1 of Schedule 15B for the purposes of sections 224A (life sentence for second listed offence) of the Criminal Justice Act For convictions on or after 3 December 2012 (irrespective of the date of commission of the offence), this is a specified offence for the purposes of section 226A (extended sentence for certain violent or sexual offences) of the Criminal Justice Act 2003 ASSAULT BY PENETRATION Sexual Offences Definitive Guideline 13

15 14 Sexual Offences Definitive Guideline STEP ONE ASSAULT BY PENETRATION Determining the offence category The court should determine which categories of harm and culpability the offence falls into by reference only to the tables below. Harm Category 1 Category 2 Culpability The extreme nature of one or more category 2 factors or the extreme impact caused by a combination of category 2 factors may elevate to category 1 Severe psychological or physical harm Penetration using large or dangerous object(s) Additional degradation/humiliation Abduction Prolonged detention/sustained incident Violence or threats of violence (beyond that which is inherent in the offence) Forced/uninvited entry into victim s home Victim is particularly vulnerable due to personal circumstances* * for children under 13 please refer to the guideline on page 33 Category 3 Factor(s) in categories 1 and 2 not present A Significant degree of planning Offender acts together with others to commit the offence Use of alcohol/drugs on victim to facilitate the offence Abuse of trust Previous violence against victim Offence committed in course of burglary Recording of the offence Commercial exploitation and/or motivation Offence racially or religiously aggravated Offence motivated by, or demonstrating, hostility to the victim based on his or her sexual orientation (or presumed sexual orientation) or transgender identity (or presumed transgender identity) Offence motivated by, or demonstrating, hostility to the victim based on his or her disability (or presumed disability) B Factor(s) in category A not present STEP TWO and category range Having determined the category, the court should use the corresponding starting points to reach a sentence within the category range on the next page. The starting point applies to all offenders irrespective of plea or previous convictions. Having determined the starting point, step two allows further adjustment for aggravating or mitigating features, set out on the next page. A case of particular gravity, reflected by multiple features of culpability or harm in step one, could merit upward adjustment from the starting point before further adjustment for aggravating or mitigating features, set out on the next page. Where there is a sufficient prospect of rehabilitation, a community order with a sex offender treatment programme requirement under section 202 of the Criminal Justice Act 2003 can be a proper alternative to a short or moderate length custodial sentence.

16 A B 15 years custody 12 years custody years custody years custody 8 years custody 6 years custody 5 13 years custody 4 9 years custody 4 years custody 2 years custody 2 6 years custody High level community order 4 years custody Category 1 Category 2 Category 3 The table below contains a non-exhaustive list of additional factual elements providing the context of the offence and factors relating to the offender. Identify whether any combination of these, or other relevant factors, should result in an upward or downward adjustment from the starting point. In particular, relevant recent convictions are likely to result in an upward adjustment. In some cases, having considered these factors, it may be appropriate to move outside the identified category range. When sentencing appropriate category 3 offences, the court should also consider the custody threshold as follows: has the custody threshold been passed? if so, is it unavoidable that a custodial sentence be imposed? if so, can that sentence be suspended? Aggravating factors Statutory aggravating factors Previous convictions, having regard to a) the nature of the offence to which the conviction relates and its relevance to the current offence; and b) the time that has elapsed since the conviction Any steps taken to prevent the victim reporting an incident, obtaining assistance and/or from assisting or supporting the prosecution Attempts to dispose of or conceal evidence Commission of offence whilst under the influence of alcohol or drugs Offence committed whilst on bail Other aggravating factors Mitigating factors Specific targeting of a particularly vulnerable victim No previous convictions or no relevant/recent convictions Blackmail or other threats made (where not taken into account at step one) Remorse Location of offence Age and/or lack of maturity where it affects the responsibility of the offender Timing of offence Use of weapon or other item to frighten or injure Victim compelled to leave their home (including victims of domestic violence) Failure to comply with current court orders Offence committed whilst on licence Exploiting contact arrangements with a child to commit an offence Presence of others, especially children Previous good character and/or exemplary conduct* Mental disorder or learning disability, particularly where linked to the commission of the offence * Previous good character/exemplary conduct is different from having no previous convictions. The more serious the offence, the less the weight which should normally be attributed to this factor. Where previous good character/exemplary conduct has been used to facilitate the offence, this mitigation should not normally be allowed and such conduct may constitute an aggravating factor. In the context of this offence, previous good character/exemplary conduct should not normally be given any significant weight and will not normally justify a reduction in what would otherwise be the appropriate sentence. ASSAULT BY PENETRATION Sexual Offences Definitive Guideline 15

17 16 Sexual Offences Definitive Guideline ASSAULT BY PENETRATION STEP THREE Consider any factors which indicate a reduction, such as assistance to the prosecution The court should take into account sections 73 and 74 of the Serious Organised Crime and Police Act 2005 (assistance by defendants: reduction or review of sentence) and any other rule of law by virtue of which an offender may receive a discounted sentence in consequence of assistance given (or offered) to the prosecutor or investigator. STEP FOUR Reduction for guilty pleas The court should take account of any potential reduction for a guilty plea in accordance with section 144 of the Criminal Justice Act 2003 and the Guilty Plea guideline. STEP FIVE Dangerousness The court should consider whether having regard to the criteria contained in Chapter 5 of Part 12 of the Criminal Justice Act 2003 it would be appropriate to award a life sentence (section 224A or section 225(2)) or an extended sentence (section 226A). When sentencing offenders to a life sentence under these provisions, the notional determinate sentence should be used as the basis for the setting of a minimum term. STEP SIX Totality principle If sentencing an offender for more than one offence, or where the offender is already serving a sentence, consider whether the total sentence is just and proportionate to the offending behaviour. STEP SEVEN Ancillary orders The court must consider whether to make any ancillary orders. The court must also consider what other requirements or provisions may automatically apply. Further information is included at Annex A on page 153. STEP EIGHT Reasons Section 174 of the Criminal Justice Act 2003 imposes a duty to give reasons for, and explain the effect of, the sentence. STEP NINE Consideration for time spent on bail The court must consider whether to give credit for time spent on bail in accordance with section 240A of the Criminal Justice Act 2003.

18 Sexual assault Sexual Offences Act 2003 (section 3) Triable either way Maximum: 10 years custody Offence range: Community order 7 years custody For convictions on or after 3 December 2012 (irrespective of the date of commission of the offence), this is a specified offence for the purposes of section 226A (extended sentence for certain violent or sexual offences) of the Criminal Justice Act SEXUAL ASSAULT Sexual Offences Definitive Guideline 17

19 18 Sexual Offences Definitive Guideline STEP ONE SEXUAL ASSAULT Determining the offence category The court should determine which categories of harm and culpability the offence falls into by reference only to the tables below. Harm Category 1 Category 2 Category 3 Culpability Severe psychological or physical harm Abduction Violence or threats of violence Forced/uninvited entry into victim s home A Significant degree of planning Offender acts together with others to commit the offence Touching of naked genitalia or naked breasts Prolonged detention/sustained incident Additional degradation/humiliation Victim is particularly vulnerable due to personal circumstances* Use of alcohol/drugs on victim to facilitate the offence * for children under 13 please refer to the guideline on page 37 Commercial exploitation and/or motivation Factor(s) in categories 1 and 2 not present Abuse of trust Previous violence against victim Offence committed in course of burglary Recording of offence Offence racially or religiously aggravated Offence motivated by, or demonstrating, hostility to the victim based on his or her sexual orientation (or presumed sexual orientation) or transgender identity (or presumed transgender identity) Offence motivated by, or demonstrating, hostility to the victim based on his or her disability (or presumed disability) B Factor(s) in category A not present STEP TWO and category range Having determined the category, the court should use the corresponding starting points to reach a sentence within the category range on the next page. The starting point applies to all offenders irrespective of plea or previous convictions. Having determined the starting point, step two allows further adjustment for aggravating or mitigating features, set out on the next page. A case of particular gravity, reflected by multiple features of culpability or harm in step one, could merit upward adjustment from the starting point before further adjustment for aggravating or mitigating features, set out on the next page. Where there is a sufficient prospect of rehabilitation, a community order with a sex offender treatment programme requirement under section 202 of the Criminal Justice Act 2003 can be a proper alternative to a short or moderate length custodial sentence.

20 A B 4 years custody 2 years 6 months custody 3 7 years custody 2 4 years custody 2 years custody 1 year s custody 1 4 years custody High level community order 2 years custody 26 weeks custody High level community order High level community order 1 year s custody Medium level community order 26 weeks custody Category 1 Category 2 Category 3 The table below contains a non-exhaustive list of additional factual elements providing the context of the offence and factors relating to the offender. Identify whether any combination of these, or other relevant factors, should result in an upward or downward adjustment from the starting point. In particular, relevant recent convictions are likely to result in an upward adjustment. In some cases, having considered these factors, it may be appropriate to move outside the identified category range. When sentencing appropriate category 2 or 3 offences, the court should also consider the custody threshold as follows: has the custody threshold been passed? if so, is it unavoidable that a custodial sentence be imposed? if so, can that sentence be suspended? Aggravating factors Statutory aggravating factors Previous convictions, having regard to a) the nature of the offence to which the conviction relates and its relevance to the current offence; and b) the time that has elapsed since the conviction Any steps taken to prevent the victim reporting an incident, obtaining assistance and/or from assisting or supporting the prosecution Attempts to dispose of or conceal evidence Commission of offence whilst under the influence of alcohol or drugs Offence committed whilst on bail Other aggravating factors Mitigating factors Specific targeting of a particularly vulnerable victim No previous convictions or no relevant/recent convictions Blackmail or other threats made (where not taken into account at step one) Remorse Location of offence Age and/or lack of maturity where it affects the responsibility of the offender Timing of offence Use of weapon or other item to frighten or injure Victim compelled to leave their home (including victims of domestic violence) Previous good character and/or exemplary conduct* Mental disorder or learning disability, particularly where linked to the commission of the offence Demonstration of steps taken to address offending behaviour Failure to comply with current court orders Offence committed whilst on licence Exploiting contact arrangements with a child to commit an offence Presence of others, especially children * Previous good character/exemplary conduct is different from having no previous convictions. The more serious the offence, the less the weight which should normally be attributed to this factor. Where previous good character/exemplary conduct has been used to facilitate the offence, this mitigation should not normally be allowed and such conduct may constitute an aggravating factor. SEXUAL ASSAULT Sexual Offences Definitive Guideline 19

21 20 Sexual Offences Definitive Guideline SEXUAL ASSAULT STEP THREE Consider any factors which indicate a reduction, such as assistance to the prosecution The court should take into account sections 73 and 74 of the Serious Organised Crime and Police Act 2005 (assistance by defendants: reduction or review of sentence) and any other rule of law by virtue of which an offender may receive a discounted sentence in consequence of assistance given (or offered) to the prosecutor or investigator. STEP FOUR Reduction for guilty pleas The court should take account of any potential reduction for a guilty plea in accordance with section 144 of the Criminal Justice Act 2003 and the Guilty Plea guideline. STEP FIVE Dangerousness The court should consider whether having regard to the criteria contained in Chapter 5 of Part 12 of the Criminal Justice Act 2003 it would be appropriate to award an extended sentence (section 226A). STEP SIX Totality principle If sentencing an offender for more than one offence, or where the offender is already serving a sentence, consider whether the total sentence is just and proportionate to the offending behaviour. STEP SEVEN Ancillary orders The court must consider whether to make any ancillary orders. The court must also consider what other requirements or provisions may automatically apply. Further information is included at Annex A on page 153. STEP EIGHT Reasons Section 174 of the Criminal Justice Act 2003 imposes a duty to give reasons for, and explain the effect of, the sentence. STEP NINE Consideration for time spent on bail The court must consider whether to give credit for time spent on bail in accordance with section 240A of the Criminal Justice Act 2003.

22 Causing a person to engage in sexual activity without consent Sexual Offences Act 2003 (section 4) Triable only on indictment (if penetration involved) otherwise, triable either way Maximum: Life imprisonment (if penetration involved) otherwise, 10 years Offence range: C ommunity order 7 years custody (if no penetration involved) / 19 years custody (if penetration involved) This is a serious specified offence for the purposes of section 224 and, where the offence involved penetration, section 225(2) (life sentence for serious offences) of the Criminal Justice Act For offences involving penetration, committed on or after 3 December 2012, this is an offence listed in Part 1 of Schedule 15B for the purposes of sections 224A (life sentence for second listed offence) of the Criminal Justice Act For convictions on or after 3 December 2012 (irrespective of the date of commission of the offence), this is a specified offence for the purposes of section 226A (extended sentence for certain violent or sexual offences) of the Criminal Justice Act CAUSING A PERSON TO ENGAGE IN SEXUAL ACTIVITY WITHOUT CONSENT Sexual Offences Definitive Guideline 21

23 22 Sexual Offences Definitive Guideline STEP ONE CAUSING A PERSON TO ENGAGE IN SEXUAL ACTIVITY WITHOUT CONSENT Determining the offence category The court should determine which categories of harm and culpability the offence falls into by reference only to the tables below. Harm Category 1 Category 2 Culpability The extreme nature of one or more category 2 factors or the extreme impact caused by a combination of category 2 factors may elevate to category 1 Severe psychological or physical harm Penetration using large or dangerous object(s) Pregnancy or STI as a consequence of offence Additional degradation/humiliation Abduction Prolonged detention/sustained incident Violence or threats of violence Forced/uninvited entry into victim s home Victim is particularly vulnerable due to personal circumstances* * for children under 13 please refer to the guideline on page 41 Category 3 Factor(s) in categories 1 and 2 not present A Significant degree of planning Offender acts together with others to commit the offence Use of alcohol/drugs on victim to facilitate the offence Abuse of trust Previous violence against victim Offence committed in course of burglary Recording of the offence Commercial exploitation and/or motivation Offence racially or religiously aggravated Offence motivated by, or demonstrating, hostility to the victim based on his or her sexual orientation (or presumed sexual orientation) or transgender identity (or presumed transgender identity) Offence motivated by, or demonstrating, hostility to the victim based on his or her disability (or presumed disability) B Factor(s) in category A not present STEP TWO and category range Having determined the category, the court should use the corresponding starting points to reach a sentence within the category range on the next page. The starting point applies to all offenders irrespective of plea or previous convictions. Having determined the starting point, step two allows further adjustment for aggravating or mitigating features, set out on the next page. A case of particular gravity, reflected by multiple features of culpability or harm in step one, could merit upward adjustment from the starting point before further adjustment for aggravating or mitigating features, set out on the next page. Where there is a sufficient prospect of rehabilitation, a community order with a sex offender treatment programme requirement under section 202 of the Criminal Justice Act 2003 can be a proper alternative to a short or moderate length custodial sentence.

24 Sexual Offences Definitive Guideline 23 Category 1 Category 2 Category 3 A B 15 years custody 12 years custody years custody years custody 8 years custody 6 years custody 5 13 years custody 4 9 years custody 4 years custody 2 years custody 2 6 years custody High level community order 4 years custody Where offence did not involve penetration Category 1 Category 2 Category 3 A B 4 years custody 2 years 6 months custody 3 7 years custody 2 4 years custody 2 years custody 1 year s custody 1 4 years custody High level community order 2 years custody 26 weeks custody High level community order High level community order 1 year s custody Medium level community order 26 weeks custody CAUSING A PERSON TO ENGAGE IN SEXUAL ACTIVITY WITHOUT CONSENT Where offence involved penetration

25 CAUSING A PERSON TO ENGAGE IN SEXUAL ACTIVITY WITHOUT CONSENT 24 Sexual Offences Definitive Guideline The table below contains a non-exhaustive list of additional factual elements providing the context of the offence and factors relating to the offender. Identify whether any combination of these, or other relevant factors, should result in an upward or downward adjustment from the starting point. In particular, relevant recent convictions are likely to result in an upward adjustment. In some cases, having considered these factors, it may be appropriate to move outside the identified category range. When sentencing appropriate category 2 or 3 offences, the court should also consider the custody threshold as follows: has the custody threshold been passed? if so, is it unavoidable that a custodial sentence be imposed? if so, can that sentence be suspended? Aggravating factors Mitigating factors Statutory aggravating factors No previous convictions or no relevant/recent convictions Previous convictions, having regard to a) the nature of the offence to which the conviction relates and its relevance to the current offence; and b) the time that has elapsed since the conviction Remorse Offence committed whilst on bail Other aggravating factors Specific targeting of a particularly vulnerable victim Ejaculation (where not taken into account at step one) Blackmail or other threats made (where not taken into account at step one) Location of offence Timing of offence Use of weapon or other item to frighten or injure Previous good character and/or exemplary conduct* Age and/or lack of maturity where it affects the responsibility of the offender Mental disorder or learning disability, particularly where linked to the commission of the offence * Previous good character/exemplary conduct is different from having no previous convictions. The more serious the offence, the less the weight which should normally be attributed to this factor. Where previous good character/exemplary conduct has been used to facilitate the offence, this mitigation should not normally be allowed and such conduct may constitute an aggravating factor. In the context of this offence, previous good character/exemplary conduct should not normally be given any significant weight and will not normally justify a reduction in what would otherwise be the appropriate sentence. Victim compelled to leave their home (including victims of domestic violence) Failure to comply with current court orders Offence committed whilst on licence Exploiting contact arrangements with a child to commit an offence Presence of others, especially children Any steps taken to prevent the victim reporting an incident, obtaining assistance and/or from assisting or supporting the prosecution Attempts to dispose of or conceal evidence Commission of offence whilst under the influence of alcohol or drugs

26 Sexual Offences Definitive Guideline 25 Consider any factors which indicate a reduction, such as assistance to the prosecution The court should take into account sections 73 and 74 of the Serious Organised Crime and Police Act 2005 (assistance by defendants: reduction or review of sentence) and any other rule of law by virtue of which an offender may receive a discounted sentence in consequence of assistance given (or offered) to the prosecutor or investigator. STEP FOUR Reduction for guilty pleas The court should take account of any potential reduction for a guilty plea in accordance with section 144 of the Criminal Justice Act 2003 and the Guilty Plea guideline. STEP FIVE Dangerousness The court should consider whether having regard to the criteria contained in Chapter 5 of Part 12 of the Criminal Justice Act 2003 it would be appropriate to award a life sentence (section 224A or section 225(2)) or an extended sentence (section 226A). When sentencing offenders to a life sentence under these provisions, the notional determinate sentence should be used as the basis for the setting of a minimum term. STEP SIX Totality principle If sentencing an offender for more than one offence, or where the offender is already serving a sentence, consider whether the total sentence is just and proportionate to the offending behaviour. STEP SEVEN Ancillary orders The court must consider whether to make any ancillary orders. The court must also consider what other requirements or provisions may automatically apply. Further information is included at Annex A on page 153. STEP EIGHT Reasons Section 174 of the Criminal Justice Act 2003 imposes a duty to give reasons for, and explain the effect of, the sentence. STEP NINE Consideration for time spent on bail The court must consider whether to give credit for time spent on bail in accordance with section 240A of the Criminal Justice Act CAUSING A PERSON TO ENGAGE IN SEXUAL ACTIVITY WITHOUT CONSENT STEP THREE

27 CAUSING A PERSON TO ENGAGE IN SEXUAL ACTIVITY WITHOUT CONSENT 26 Sexual Offences Definitive Guideline Blank page

28 Rape of a child under 13 Sexual Offences Act 2003 (section 5) Triable only on indictment Maximum: Life imprisonment Offence range: 6 19 years custody This is a serious specified offence for the purposes of sections 224 and 225(2) (life sentence for serious offences) of the Criminal Justice Act For offences committed on or after 3 December 2012, this is an offence listed in Part 1 of Schedule 15B for the purposes of section 224A (life sentence for second listed offence) of the Criminal Justice Act For convictions on or after 3 December 2012 (irrespective of the date of commission of the offence), this is a specified offence for the purposes of section 226A (extended sentence for certain violent or sexual offences) of the Criminal Justice Act RAPE OF A CHILD UNDER 13 Sexual Offences Definitive Guideline 27

29 28 Sexual Offences Definitive Guideline STEP ONE RAPE OF A CHILD UNDER 13 Determining the offence category The court should determine which categories of harm and culpability the offence falls into by reference only to the tables on the next page. Offences may be of such severity, for example involving a campaign of rape, that sentences of 20 years and above may be appropriate. 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. See page 29.

30 Sexual Offences Definitive Guideline 29 Category 1 Category 2 Category 3 Culpability The extreme nature of one or more category 2 factors or the extreme impact caused by a combination of category 2 factors may elevate to category 1 Severe psychological or physical harm Pregnancy or STI as a consequence of offence Additional degradation/humiliation Abduction Prolonged detention /sustained incident Violence or threats of violence Forced/uninvited entry into victim s home Child is particularly vulnerable due to extreme youth and/or personal circumstances Factor(s) in categories 1 and 2 not present A Significant degree of planning Offender acts together with others to commit the offence Use of alcohol/drugs on victim to facilitate the offence Grooming behaviour used against victim Abuse of trust Previous violence against victim Offence committed in course of burglary Sexual images of victim recorded, retained, solicited or shared Deliberate isolation of victim Commercial exploitation and/or motivation Offence racially or religiously aggravated Offence motivated by, or demonstrating, hostility to the victim based on his or her sexual orientation (or presumed sexual orientation) or transgender identity (or presumed transgender identity) Offence motivated by, or demonstrating, hostility to the victim based on his or her disability (or presumed disability) B Factor(s) in category A not present See page 30. RAPE OF A CHILD UNDER 13 Harm

31 30 Sexual Offences Definitive Guideline STEP TWO RAPE OF A CHILD UNDER 13 and category range Having determined the category, the court should use the corresponding starting points to reach a sentence within the category range below. The starting point applies to all offenders irrespective of plea or previous convictions. Having determined the starting point, step two allows further adjustment for aggravating or mitigating features, set out on the next page. A case of particular gravity, reflected by multiple features of culpability or harm in step one, could merit upward adjustment from the starting point before further adjustment for aggravating or mitigating features, set out on the next page. Sentencers should also note the wording set out at step one which may be applicable in exceptional cases. Category 1 Category 2 Category 3 A B 16 years custody 13 years custody years custody years custody 13 years custody 10 years custody years custody 8 13 years custody 10 years custody 8 years custody 8 13 years custody 6 11 years custody See page 31.

32 The table below contains a non-exhaustive list of additional factual elements providing the context of the offence and factors relating to the offender. Identify whether any combination of these, or other relevant factors, should result in an upward or downward adjustment from the starting point. In particular, relevant recent convictions are likely to result in an upward adjustment. In some cases, having considered these factors, it may be appropriate to move outside the identified category range. Aggravating factors Mitigating factors Statutory aggravating factors No previous convictions or no relevant/recent convictions Previous convictions, having regard to a) the nature of the offence to which the conviction relates and its relevance to the current offence; and b) the time that has elapsed since the conviction Remorse Offence committed whilst on bail Other aggravating factors Specific targeting of a particularly vulnerable child Ejaculation (where not taken into account at step one) Blackmail or other threats made (where not taken into account at step one) Location of offence Timing of offence Use of weapon or other item to frighten or injure Victim compelled to leave their home, school, etc Failure to comply with current court orders Offence committed whilst on licence Exploiting contact arrangements with a child to commit an offence Presence of others, especially other children Any steps taken to prevent the victim reporting an incident, obtaining assistance and/or from assisting or supporting the prosecution Attempts to dispose of or conceal evidence Commission of offence whilst offender under the influence of alcohol or drugs Victim encouraged to recruit others Previous good character and/or exemplary conduct* Age and/or lack of maturity where it affects the responsibility of the offender Mental disorder or learning disability, particularly where linked to the commission of the offence * Previous good character/exemplary conduct is different from having no previous convictions. The more serious the offence, the less the weight which should normally be attributed to this factor. Where previous good character/exemplary conduct has been used to facilitate the offence, this mitigation should not normally be allowed and such conduct may constitute an aggravating factor. In the context of this offence, previous good character/exemplary conduct should not normally be given any significant weight and will not normally justify a reduction in what would otherwise be the appropriate sentence. RAPE OF A CHILD UNDER 13 Sexual Offences Definitive Guideline 31

33 32 Sexual Offences Definitive Guideline RAPE OF A CHILD UNDER 13 STEP THREE Consider any factors which indicate a reduction, such as assistance to the prosecution The court should take into account sections 73 and 74 of the Serious Organised Crime and Police Act 2005 (assistance by defendants: reduction or review of sentence) and any other rule of law by virtue of which an offender may receive a discounted sentence in consequence of assistance given (or offered) to the prosecutor or investigator. STEP FOUR Reduction for guilty pleas The court should take account of any potential reduction for a guilty plea in accordance with section 144 of the Criminal Justice Act 2003 and the Guilty Plea guideline. STEP FIVE Dangerousness The court should consider whether having regard to the criteria contained in Chapter 5 of Part 12 of the Criminal Justice Act 2003 it would be appropriate to award a life sentence (section 224A or section 225(2)) or an extended sentence (section 226A). When sentencing offenders to a life sentence under these provisions, the notional determinate sentence should be used as the basis for the setting of a minimum term. STEP SIX Totality principle If sentencing an offender for more than one offence, or where the offender is already serving a sentence, consider whether the total sentence is just and proportionate to the offending behaviour. STEP SEVEN Ancillary orders The court must consider whether to make any ancillary orders. The court must also consider what other requirements or provisions may automatically apply. Further information is included at Annex A on page 153. STEP EIGHT Reasons Section 174 of the Criminal Justice Act 2003 imposes a duty to give reasons for, and explain the effect of, the sentence. STEP NINE Consideration for time spent on bail The court must consider whether to give credit for time spent on bail in accordance with section 240A of the Criminal Justice Act 2003.