Sentencing Guidelines for Sexual Offences

The majority of offences which amount to “Sexual offences” are set out in the Sexual Offences Act 2003 (or see the 1956 Act for historical offences still on the statute books). These types of offences can range from lower level criminality (meaning they can only be tried in the Magistrates Court) to some of the most serious offences, such as rape, which can only be tried on indictment (namely at the Crown Court). Due to the serious nature of these offences, almost all sexual offences can attract a custodial sentence upon conviction.

However, just because they are capable of attracting a custodial sentence, it does not mean that this is the sentence which will be applied. Sentencing guidelines will determine the sentence an individual receives based on the level of harm caused by the commission of the offence and the culpability of the offender. They will also consider both aggravating and mitigating circumstances, which is likely to involve aspects such as the vulnerability of the complainant and the extent of an offender’s planning and intent.

Types of Sentence for a Sexual Offence

The range of sentences available in respect of any sexual offence are as follows:

• Custodial Sentence: this means that the offender would spend a period of time in custody. For anything less than 7 years, the offender will spend 50% of the sentence in custody and the other 50% of the sentence in the community on licence, following certain conditions. If the sentence is higher than this, then the offender will spend two thirds of their sentence in custody before becoming eligible for release to serve the remainder in the community, unless they have been found to be ‘dangerous’ – in which case the offender may not be released until the end of their sentence or until the Parol Board directs release. Sexual offenders are not eligible for the 40% release scheme currently in operation.
• Suspended Sentence: a suspended sentence is a custodial sentence which is suspended, meaning the offender will serve their sentence in the community, abiding by a set of conditions or requirements. If they breach the conditions or requirements or commit a further offence whilst the order is active, the order may be activated and the custodial sentence is imposed.
• Community Order: this means that the sentence will be carried out in the community and will have requirements attached, such as unpaid work or rehabilitation sessions. Failure to comply with the terms of the order can result in additional hours of unpaid work or a financial penalty or, in the worst instances, a custodial sentence being imposed for the breach.

Common Sexual Offences and How They are Sentenced

Most Serious Sexual Offences and their Sentencing Guidelines:

Sexual offences which are considered the most serious tend to be offences involving children or particularly vulnerable complainants or sexual acts which involve penetration.

Examples of more serious sexual offences include:

• Rape:
  • This is one of the most serious sexual offences and therefore carries a higher sentence. The maximum sentence for rape is life imprisonment. The offence carries a sentence range between 4 years’ custody and 19 years’ custody.
  • Indictable only (can only be tried at the Crown Court).
  • Any sentence may be aggravated by the age and vulnerability of the complainant.
• Indecent image offences
  • One of the more serious offences, attracting a sentencing range of a medium level community order to 9 years’ custody.
  • Triable either way (meaning it can be tried in either the Magistrates or Crown Court, dependent on the seriousness of the specific circumstances).
  • Sentence becomes aggravated if there is distribution (starting point of three years custody for distribution of Category A images) or production (starting point of 6 years custody for prosecution of category A images). Possession of indecent images at category A has a starting point of 12 months’ custody.
  • Sentence is impacted by the ‘category’ of the images (A, B or C).
• Sexual assault by penetration
  • The most serious sexual assault offence, attracting a sentence range between a high-level community order and 19 years’ custody.
  • Triable either way (can be tried at the Magistrates or the Crown Court, depending on the election of the defendant or the acceptance/declination of jurisdiction by the Magistrates Court).

Lesser Sexual Offences and their Sentencing Guidelines

Examples of other sexual offences, which although serious, tend to carry lower sentences, include:

• Sexual Assault by Touching
  • Similar to sexual assault by penetration but attracts a lower sentencing range of a medium level community order and 7 years’ custody.
  • Triable either way (can be tried in either the Magistrates or Crown Court).
  • Seriousness of offence and sentence likely to be impacted by touching under clothing as well as the age and vulnerability of the complainant.
• Indecent Exposure
  • A lower level offence due to the lack of direct contact between complainant and defendant.
  • Triable either-way.
  • Attracts a sentencing range between a Band A fine and 1 year’s custody.
• Voyeurism
  • Again, a lower level offence due to the lack of direct contact between complainant and defendant.
  • Triable either-way.
  • Attracts a sentencing range between a Band A fine and 18 months custody.

Common Aggravating and Mitigating Factors:

When sentencing sexual offences, the Court will consider the sentencing guidelines which will involve an assessment of any aggravating or mitigating factors.

Common aggravating factors, as mentioned above, include:

• Previous convictions for similar offences
• Targeting of a young or vulnerable complainant
• Location and timing of offence
• Abuse of trust or position

Common mitigation factors include:

• Age or lack of maturity of the defendant
• Mental disorder or learning disability
• Remorse

Further Impact of Sentencing for Sexual Offences

Along with the standard sentences passed following convictions for a sexual offence (i.e. custody, community order, etc.), there are additional consequences that apply. One of the most significant consequences is the application of the Sex Offenders Register (also known as the Notification Requirements).

The length of time an individual will spend on the Register depends on the defendant’s age or the length of sentence received. For instance:

• A caution for a relevant offence will result in 2 years on the Register for someone 18 or over, and 1 year for someone under 18.
• Anyone who receives the equivalent custodial sentence of 6 months or less who is 18 or over will have notification requirements for 7 years. This is reduced to 3 and a half years for anyone under 18.
• For any equivalent custodial sentence of more than 6 months and less then 30 months, the applicable period on the Register increases to 10 years for persons aged 18 and over and 5 years for under 18’s.
• An individual, regardless of age, who receives a hospital order with a restriction order or imprisonment of 30 months or more will be placed on the Sex Offenders Register indefinitely.

Before an individual can request to be removed from the Register, they must have been on it for at least 15 years.

The Notification Requirements means that individuals will be required to report to the police within three days of conviction or prison release to provide them with their personal information, including their home address.

Other Ancillary Orders are commonly imposed when sexual offences are sentenced, including Sexual Harm Prevention Orders or Sexual Risk Orders. These are court orders containing specific terms which the individual must comply with. Breach of any of the terms of these orders is a separate offence which will result in a separate conviction and sentence.

Other Considerations:

• Credit for an early guilty plea

Another impact on the sentence an individual may receive in these types of cases relates to whether credit is available for an early guilty plea. If an individual pleads guilty at the first instance at the Magistrates Court, in most cases they will be entitled to a third off of any sentence that they may receive. If the guilty plea is entered for the first time at the Crown Court (at the first hearing, known as the PTPH), the credit for an early guilty plea is reduced to 25%.

Whilst credit for an early guilty plea can clearly make a significant impact on the sentence imposed, we would never advise anyone to plead guilty who was not actually guilty simply to obtain for a discount in sentence.

• PSR

Another aspect of the case which may affect sentencing is the individual’s compliance with Probation, either during the production of a Pre-Sentence Report ordered by the Court or during any previous involvement with Probation.

A Pre-Sentence Report will be ordered by the court in many cases, to be carried out by the Probation Services. These reports will outline to the court Probation’s recommendations for sentence and an individual’s likely ability to comply with a community based penalty.

• Other work conducted to mitigate possibility of reoffending

A significant element which may impact the sentence, particularly in cases involving sexual offences, is proof of any offence focused ‘work’ which may have been undertaken by the individual since the offending behaviour.  Although the sentence imposed will inevitably encompass a punitive element, one of the main considerations given to sentencing is rehabilitation and the prevention from further offending. If an individual can show that they have started to take steps to reduce their chances of reoffending in the future, a court may take this into consideration when deciding sentence. For example, the court is more likely to accept that the offender is safe to be sentenced in the community instead of being sent to prison.

How Can We Help?

If you have been accused of a sexual offence, it is important to seek legal advice at the earliest opportunity. These offences are incredibly serious and can carry significant sentences upon conviction. Our team of criminal defence specialists have extensive experience in sexual offence cases, and can help to ensure you get the best outcome possible, whether at trial or sentencing. Alternatively, if you have queries about ongoing orders or notification requirements, we have legal representatives who may be able to advise and assist.

We have the necessary knowledge to guide you through what can feel like an incredibly daunting process. If you have been accused of an offence or are dealing with ongoing impacts of a sexual offence sentence, contact Old Bailey Solicitors on 0207 8464 999 or at [email protected] to obtain legal assistance at the earliest opportunity.