Abstract
A residual, downstream issue for youth justice concerns the sentencing of those who offended as juveniles but do not come before a criminal court until later, sometimes much later, in life. 1 Such instances most commonly feature youthful sexual offending where the victim, especially where she or he too was a child when offended against, has been inhibited in making complaint or disclosure, whether through some sense of shame, embarrassment, distrust, fear of recrimination/blame or of not being believed, intimidation or emotional conflict over what is for the best. Alternatively, the victim may have disclosed in a more timely way informally but has been silenced, either by disbelief or a response that the issue should be dealt with and resolved in some extra-penal manner. The prosecution of historic crime may also arise in the context of homicide or other grave offending where it is not apparent until much later that a crime has been committed (e.g. by the belated discovery of a body) or the identity of the perpetrator comes to light only through advances in forensic science.
This Commentary seeks to outline and illustrate the principles and approach applied in England and Wales in light of recent authoritative interpretation in guideline judgements in the Court of Appeal, principally in R v Hall and others 2 [2012] 1 WLR 1416, [2012] 2 Cr App R (S) 21, Attorney General’s Reference No. 32 of 2016 (R v B.) [2016] 2 Cr App R(S) 20 and R v Forbes and others [2016] EWCA Crim 1388. It should be noted that, summary offences apart, there are no statutory limits on the prosecution of crimes in this jurisdiction or elsewhere in the United Kingdom, in contrast to Statute of Limitations provisions applying in many jurisdictions in the United States and in mainland Europe.
General Principles
Date of the offence
As a fundamental starting point, it is well established that this date determines: (1) whether the defendant’s conduct now attracts criminal liability (i.e. was the behaviour in question then criminal?); (2) if yes, the nature of that liability under the statutory (or common law) provisions that then applied (i.e. the identity of the offence); and (3) the maximum sentence available in dealing with the historic crime, by reference to the law pertaining at that earlier time. Subsequent developments may have changed perceptions of the preferred ambit of criminalised conduct and the appropriate ensuing sanction; maximum statutory terms will often have been raised in light of developing appreciation of the gravity of offending that may previously have been viewed less censoriously. The principle against retrospectivity is a core feature of the European Convention on Human Rights, within Article Seven. 3 However, if (as happens more rarely) the maximum sentence liability has subsequently been reduced, the offender is not disadvantaged and has the benefit of any lower maximum now applicable.
That said, the case is not frozen in penal time, to be dealt with as if it had been subject of conviction and disposal in the immediate aftermath of the crime, a task that Judge CJ in R v H. and others regarded as ‘wholly unrealistic’. The sentencer is not determining what sentence would have been passed if the case had been tried shortly after the offence had been committed. This is where the waters become more muddied in determining the extent to which it is proper to take account of post-crime developments.
Date of sentence
The Court of Appeal in H. has sought to clarify that in principle, the defendant must be sentenced in accordance with the sentencing regime applicable at the date of sentence. In addition to imposing a contemporary form of sentence, the court must have regard to the current generic statutory purposes of sentencing (Criminal Justice Act (CJA) 2003 s.142) and must base the sentencing exercise on its assessment of the seriousness of the offence, assessed under CJA 2003 s.143 by weighing the culpability of the offender and the harm caused or intended. The Court of Appeal has more recently confirmed that ‘sentencing regime’ includes ‘current sentencing practice’.
Sentencing guidelines
In pursuing that task, the court should have regard to any applicable sentencing guidelines 4 either relating to the offence committed if the statutory provisions remain unchanged or for the equivalent offence under current legislation. Prominently in this context, the Sexual Offences Act (SOA) 2003 sought to modernise the law regulating sexual assault and abuse, but it has been possible to cross-reference from previous provisions under a raft of now repealed but still applicable Acts 5 to the modern code. The go-to guideline in respect of historic sexual offending is thus Sexual Offences: Definitive Guideline (Sentencing Council, 2013).
Even this rubric has not been without difficulty in its application. The Sexual Offences guideline states that it applies to all offenders aged 18 and older, who are sentenced on or after1 April 2014. In R v GB [2015] EWCA Crim 1501, an appeal dealing with offending committed by a boy aged 14–15 against his sister aged 13–14 6 which was prosecuted 53 years later, the Court of Appeal determined that the sentencing judge had been in error to apply the 2013 guideline and should have applied the preceding guideline (Sentencing Guidelines Council (SGC), 2007) since that guideline had made specific provision for young offenders and had to be treated as still applicable, on the basis that GB remained for this purpose a ‘young offender’. However, the Court in Forbes has recently distanced itself from this interpretation, stating that the 2007 guideline and also the Overarching Principles – Sentencing Youths Definitive guideline 7 (SGC, 2009) will not generally be applicable when sentencing an adult ‘as they are predicated on the basis that the offender is still a youth’. ‘Their relevance in these circumstances is confined to the emphasis placed in each on the significance of immaturity at the time of the offending to the assessment of culpability’ and not for any other purpose.
Where the appropriate guideline is established, the Appeal Court in Forbes has reiterated that a sentencer should not simply apply this mechanistically, either by uncritical reference to the ‘equivalent offence’ under current law or by mechanistically adopting the suggested sentence starting point and sentencing range in the guideline, but should approach their task ‘in a measured and reflective manner’, having regard to the fact that generally higher maxima are provided for some of the modern-day offences. Thus, if the historic offence featured the offender placing his penis in a female child’s mouth or his finger in the child’s anus, this would come before the Crown Court now as an offence of indecent assault (under SOA 1956 s.14, carrying a maximum term of 10 years (or less 8 ), whereas the equivalent offence under SOA 2003 would comprise oral rape or sexual assault of a child by penetration, both punishable in the case of an adult by life imprisonment.
Offence seriousness
Turning to the sentencer’s task of evaluating what the perpetrator actually did and the circumstances in which he did it, a number of particular threads have been identified in the recent Appeal Court guidance, of relevance to cases involving juvenile perpetrators:
Care should be taken in seeking to apply an interpretation of the facts that may well be very appropriate in respect of an adult perpetrator who may not be valid when interpreting the juvenile conduct of the adult defendant. For example, much sexual misbehaviour occurs in a familial context. Does the older age of the perpetrator who spends unsupervised time with the younger victim amount to ‘abuse of trust’, thus aggravating their culpability? The Appeal Court in Forbes could understand that ‘in the colloquial sense’ the victim’s parents ‘would have trusted a cousin, other relation or a neighbour’s child to behave properly towards their young child’, for example, when playing together. However, the phrase ‘abuse of trust’ ‘connotes something rather more than that’ and ‘the mere fact of association or the fact that one sibling is older than another does not necessarily amount to breach of trust in this context’ (see also Illustration 4 below). It appears to follow that if the perpetrator was undertaking a role of responsibility on a more formal basis, such as paid baby-sitting/child-minding, that could make the concept of trust more applicable (see Illustration 2 below). As regards ‘grooming’ as a potentially aggravating factor, see the instance of Attorney General’s Reference No. 32 of 2016 (below).
The perpetrator’s age and immaturity at the time of their offending will have ‘a considerable bearing’ on their culpability. 9
The age of the perpetrator at the time of offence may have little or no bearing on the harm experienced by the victim. In historic cases, it may be safe to assume that the fact that, notwithstanding the passage of years, the victim has chosen spontaneously to report what happened to him or her in his or her childhood or younger years would be an indication of continuing inner turmoil. (Per Judge CJ in H.)
This is indicative of enduring harm. However, the starting points and sentencing ranges given in Sentencing Guidelines provide for the effect on the victim which is the inevitable effect of serious criminal behaviour, and
there has to be significantly more before harm is taken into account as a distinct and further aggravating factor and or before a judge makes a finding of extremely severe psychological or physical harm so as to justify placing the offence in the top category of harm. (Per Thomas CJ in Forbes)
Potential mitigation
The intervening time between crime and prosecution is significant in potentially mitigatory ways:
The allegations may have come to light many years earlier, possibly in the immediate aftermath of the offending. If the perpetrator had admitted what he had done when confronted, even though the complaint for whatever reason was not then drawn to police attention or, if investigated, had not led to prosecution, this would be ‘a relevant feature’ for the subsequent sentencer.
It is greatly to the offender’s credit if he makes early admissions when the allegation is eventually put to him as inevitably he will be tempted to lie.
Even more powerful mitigation is available to an offender who out of a sense of guilt and remorse reports himself to the authorities without prompting, thus providing the victim with some sense of vindication.
Mitigation may be found in a perpetrator’s unblemished life over the years since the offences were committed, particularly if accompanied by evidence of positive good character. However, as the Appeal Court indicated in Forbes, ‘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’.
In contrast, the passing of the years may demonstrate aggravating features if, for example, the defendant has continued to commit sexual crime or the evidence clearly indicates that he represents a continuing risk to the public (see Illustration 6 below).
Case Illustrations
Although each of the following is inevitably fact-specific to a degree, these serve to illustrate the efforts of the Court of Appeal to apply the preceding principles of approach. 10
Juvenile offending: No further concern
Illustration 1
In an instance of intra-familial offending, determined prior to H., two brothers had taken sexual advantage of their sisters in the early to mid-1970s. The older brother had extensively abused one sister aged between 6 and 9 and another aged between 3 and 5, extending to vaginal rape, when aged 14–17. His younger brother had offended far less frequently and against one sister, simulating intercourse when she was 7 and he was 15–16.The sisters had made initial complaint to the police in January 1998, but the charges were not proceeded with as both indicated that they did not want their brothers to be prosecuted. The allegations resurfaced in 2009 when another brother was arrested for alleged sexual abuse of his daughters. Both men denied any wrongdoing. Both were now in their 50s, in responsible employment, married with children and without any indication of any abuse of their own children. The older brother had experienced extensive sexual and physical abuse and exposure to adult sexual behaviour as a young child in the country where the family originated from before joining his parents in the United Kingdom. In dealing with appeal against custodial terms of 11 years (older brother) and 14 months (younger brother), the Court of Appeal clearly struggled to balance the grave nature of the older brother’s offending with the mitigation available and substituted terms of 7 years and 10 months, respectively (R v SM and RM [2010] EWCA Crim 1801).
Illustration 2
In the mid-1980s when the perpetrator was aged around 16/17 (because of the historic nature of the complaint, his precise age at the time was not clearly established), he babysat for one of his neighbours, mother of girls aged 8/9 and 6/7. In 2009 (for reasons not detailed in the judgement), it came to police attention that he had exploited the opportunities to molest both girls, progressing from ‘games’ that involved indecent touching to digital penetration and lying on top of them when he and they were naked, simulating intercourse to ejaculation. The older sister stated that she had viewed him as her ‘boyfriend’. The disclosure prompted attention to another child he had babysat at that time, then aged 5, who said he had persuaded her to suck his penis. Now aged in his early 40s, he had since led a blameless life as evidenced by positive character references. As there was no clear evidence of any vaginal penetration, he was prosecuted for indecent assault committed over the period of progressive maximum sentence increases (see Note 8). On conviction following contested trial, he incurred a total of 5 years’ imprisonment. Noting the significant age difference between him and his victims, the serious nature of what he did, extending to what would now constitute oral rape, described as ‘far from unsophisticated’, the impact on the mother of the two sisters ‘who was betrayed by him’, the Appeal Court upheld sentence (R v Dan (considered as part of the H. judgement)).
Illustration 3
Around 1980 when B. was aged 11, he exposed his penis to X., a boy aged 3, son of friends of his family who sometimes played at B.’s home. Having encouraged X. to touch and kiss his penis, he put his penis into X’s mouth, holding his head. X. later said he had felt frightened and had tried to struggle. B. also pulled down X.’s clothing to expose his genitals. When X.’s mother shouted for him to come home, B. had held X. up to the window in a way that she could not see he was naked from the waist down and had instructed him, ‘Tell her you’ll be back in a few minutes or I’ll drop you’. X. obeyed and subsequently felt too frightened to say anything. When B. was aged 14, he encouraged Y., a 5-year-old friend of X., to come with him into a play house where B. took down Y.’s trousers and played with his penis before sucking it. Afterwards, Y. did not tell anyone because he felt too ashamed. Some 25 years later and after networking with others who had experienced trauma in childhood, Y. had contacted X. to swap notes as to their experiences of B. Subsequently, X. reported B. to the police, angered on seeing B. speaking to a group of teenage boys (although there was subsequently no evidence that this was of a sexualised kind). The police took no further action until Y. reported B. some 33 years after the abuse. Now aged in his mid-40s, B. had incurred no convictions, only a police caution for an assault of a non-sexual nature in his mid-30s. X. reported that his experience of B. had had a significant and lasting effect, including flashbacks, suicidal thoughts, mental health problems and inability to maintain relationships. He continued to receive counselling and felt B.’s behaviour had ‘ruined’ him. Although Y. did not identify any comparable effect, he expressed a belief that the offence might have made him distrustful of people.
Following imposition of concurrent terms of imprisonment of 2 years suspended for 2 years, on B.’s conviction following contested trial of two counts of indecent assault, the Attorney General referred the sentence to the Court of Appeal on grounds of undue lenience (Attorney General’s Reference No. 32 of 2016). It was argued that the Crown Court had failed to give proper weight to the aggravating features, including prior grooming of X., ejaculation in the case of X. and steps taken to ensure his silence, the use of X. in recruiting Y. and the location of the offence against Y. The Appeal Court queried whether all these factors had been proved or could validly be described as aggravating (e.g. the Court concluded that the play house location of the Y. offence did not increase seriousness). It was of regret that no one had invited the judge to make findings as to whether X. had been groomed previously or whether X. had been used to recruit Y. In any event, the Court expressed its doubts ‘as to whether it is apt to describe what may have occurred between an eleven year boy and a three year old boy as “grooming” or to describe B. as having “deliberately isolated” the victims in the way the Sentencing Guideline (SC, 2013) had in mind’. ‘The evidence suggests an eleven year old boy and then a fourteen year old boy taking advantage of opportunities that presented themselves when playing with younger boys, rather than any act of grooming or deliberate isolation’. Noting that any sentence in B.’s case ‘would have to be reduced very significantly to reflect the much lower level of culpability of an eleven year old (arguably by more than 75%) and to reflect the substantial mitigation available’, the Appeal Court did not accept that the figure of 2 years determined by the judge was outside the appropriate range. As regards suspension of sentence, the Appeal Court stated: There is no principle of sentencing that all offences of this kind must be met by immediate terms of imprisonment, whatever the circumstances. As the Definitive Guideline makes clear, as serious as these offences were, there may be exceptional cases where a non-custodial sentence is appropriate. It is clear to us … that the judge was acutely conscious of the seriousness of the offences, the impact of the offences on the victims and the relevant guidelines. He did not take the decision to suspend the sentence lightly. He took a measured and balanced approach with which we do not intend to interfere.
Illustration 4
Between 1968 and 1971 when the offender was aged 11–13, he molested his sister aged 10–12, initially by penetrating her vagina digitally but rapidly progressing to regularly repeated vaginal intercourse, on some occasions witnessed by their younger brother. When aged 16–19, BD also offended against that brother, then aged 8–11, by rubbing his buttocks and fingering his anus. The abuse came to police attention when BD was aged in his late-50s. He had incurred no convictions of any kind, and all the evidence indicated that he was ‘a hardworking and devoted family man’. The victim impact statements indicated that both victims had been significantly damaged by their experiences. On appeal against that part of his total sentence (66 months’ imprisonment) incurred for eight counts of indecent assault
11
of the first victim (48 months), it was argued that at the time of this offending, under the sentencing provisions then applicable, an offender under the age of 14 could not have incurred any custodial sentence.
12
The Appeal Court acknowledged that although a sentence ordinarily ‘should not seek to establish the likely sentence had the offender been convicted shortly after the date of the offence’, in this instance it seemed to be necessary: ECHR Article 7 is clearly engaged, and in any event ordinary common law fairness would require a court to take account of the disconnect between the sentence imposed in mature life upon an offender and the non-custodial penalty applicable to a child at the time the offence was committed.
In these circumstances, a custodial sentence should not have been passed for the offences against BD’s sister. However, the Appeal Court considered that the offending against the second victim ‘has to be seen in the context that this had been preceded by separate serious offending against’ the first victim and opted to increase the term for those three counts from 18 months to 42 months, with no separate penalty for the initial offending (R v BD (considered as part of the Forbes judgement)).
Juvenile offending: Further concern
Illustration 5
Over a 12-month period between mid-1987 and mid-1988 when GJH was aged 15 or 16 and his parents were out, he abused his step-brother aged 5 by lying on top of the victim when both were naked, simulating sexual intercourse to ejaculation. He went on to abuse his step-sister aged 6 or 7 over a 12- to 18-month period ending when he was aged 16, touching her genital area and rubbing his groin against hers. To pursue this abuse, he invented games involving forfeits and blindfolding. The abuse ended after the younger boy complained to his mother, coinciding with GJH leaving home to join the army. When confronted by his parents, GJH admitted what he had done and they made sure that he was not left alone with the victims. The parents also consulted a religious minister, whose advice was that this was probably teenage experimentation and that it would be sufficient to keep a close eye on GJH. In consequence, the abuse was not reported to the police who learned of the offending after a complaint made by GJH’s ex-wife some 25 years later. In the meantime, GJH had been convicted in his late 30s (August 2010) of taking a child without lawful authority and meeting a child following sexual grooming. He had become a teacher and taken advantage of a 15-year-old girl pupil at the school where he held a senior position. He had incurred 10 months’ imprisonment, a Sexual Offences Prevention Order being made. He had subsequently breached that order by further contact with that girl, she being now an adult and in a relationship with him. The breach had attracted a community order specifying supervision by the probation service. The order had been varied to permit contact between them.
On GJH’s conviction, following contested trial, of seven historic counts of indecent assault, he incurred a total of 18 months’ imprisonment suspended for 2 years. The Attorney General referred the case to the Court of Appeal on grounds of undue leniency, having regard to the frequency of the offending, ejaculation, the enduring harm caused, the 2010 conviction and what was argued to have been GJH’s abuse of trust. Although the Appeal Court declined to accept that there had been breach of trust, it confirmed that the 2010 conviction was an aggravating factor on the basis that the type of offending involved ‘shows that, many years after the offending with which we are primarily concerned, the offender was prepared to indulge his sexual proclivities at the expense of his responsibilities’. Although an historic offender can claim credit if he has led a worthwhile and blameless life since that time, ‘that sort of contention is now rendered unavailable’ to GJH. Moreover, as regards the perpetrator’s level of culpability and possible mitigation arising from his youth and immaturity at the time of the offence, we find it extremely hard to conceive that a 14, 15 or 16 year old youth of sufficient intelligence subsequently to become a teacher, could regard the sort of repeated conduct which he inflicted on two very young children over a protracted period as anything other than seriously wrong.
The Appeal Court noted a probation report indicating that sex offender treatment with GJH had continued under his community order and would extend to include work involving the historic offending if he remained at liberty. If he now incurred an immediate custodial sentence from the Appeal Court, the substituted term would not be sufficient for effective work to be done in custody: ‘The result would be that the offender would be “partially treated”. We are informed, and accept, that research shows that non-completion, or partial treatment, can increase the risk of re-offending.’ To substitute an immediate term of imprisonment would be to run counter to the statutory purposes of sentencing concerned with rehabilitation and the reduction in crime, ‘notwithstanding the objective of punishing an offender for serious offending which has done significant harm to others’. In these circumstances, the Appeal Court concluded that the sentence imposed had not been unduly lenient in its failure to impose an immediate custodial sentence and declined to intervene (R v GJH [2014] EWCA Crim 1933).
Illustration 6
In the early to mid-80s when R. was aged 14, his family were on friendly terms with the family of a boy aged 8 who would visit R.’s home, enabling R. to abuse him, initially by touching his penis over clothing and progressing to teaching him how to masturbate, mutual masturbation and digital penetration of the boy’s anus. As put subsequently by the Appeal Court, ‘there was a degree of grooming’ in that R. gave the boy gifts, used pretexts to justify his conduct (e.g. explaining the digital penetration as a means of releasing intestinal wind), ‘talked him into things’ and asked him not to tell his parents. R. tried to persuade the boy to engage in oral and anal sex, but, after initial experiences which he disliked, he maintained refusal and the abuse eventually ceased, save for an instance of mutual masturbation when R. was aged 17/18 and the boy 11. It was later acknowledged that the abuse had had a profound impact upon the boy who felt that it ‘took his childhood away from him’.
On R.’s conviction of eight counts of indecent assault, following guilty pleas, when he was in his late-40s he was described by the sentencing judge as having become ‘something of an entrenched paedophile’, having incurred 15 months’ imprisonment in late 2010 for three offences of sexual assault of an under-age girl and 30 months’ imprisonment in March 2015 for making/possessing indecent photographs of children. In 2014, he had been fined for non-compliance with sex offender notification requirements.
On R.’s appeal against a total of 6 years’ imprisonment, the Appeal Court disputed R.’s contention that his youthful conduct had been sexual experimentation, describing his offending as ‘predatory and, in many respects, bearing all the indications of bullying behaviour’. As for the argument that R. had been very young and immature when the more serious offences were committed, the Appeal Court agreed that his youth and immaturity at the time were highly relevant to culpability but considered that the sentencer had made ‘a substantial and appropriate reduction to reflect these factors’ before applying the discount in respect of plea. In light of the aggravating features – multiple offences upon a vulnerable child over a number of years, resumption of the offending after an interlude, instructing the boy not to tell his parents – the Court did not demur from the sentencer’s view that if this offending had been committed by an adult, a sentence in the range of up to 15 years would have been merited. Appeal was dismissed (R v Rouse (considered as part of the Forbes judgement)).
Illustration 7
Between the mid-1970s and early 1980 when F. was aged 16–21, he sexually abused two brothers aged between 7 and 13 when they were visiting his home, extending to attempted penile penetration of one boy’s anus, desisting when the victim screamed in pain. Both boys were shown pornography and both made to suck F.’s penis to point of ejaculation. On some occasions, the boys witnessed each other’s abuse. F. threatened one boy not to tell anyone, warning him that both victims would be put into a children’s home, this coercion extending on one occasion to ducking him repeatedly in a stream, telling him that he would be killed if he said anything. The abuse stopped when F. married and moved out of his family home. This abuse came to notice around 2015 when F. was in his mid-50s. Although he had meantime incurred no convictions for sexual offending, his record included numerous previous convictions for offences of dishonesty, criminal damage, public disorder and assault, most recently in 2008 for actual bodily harm and breaching a non-molestation order.
On F.’s appeal against 17 years’ imprisonment for indecent assault and attempted buggery, the Court of Appeal noted that the offending extended to what amounted under the current law to numerous offences of rape of a child under 13, over a lengthy period, with a number of aggravating features, including ejaculation, threats, blackmail and violence to prevent disclosure and the commission of offences in the presence of the other child. ‘Most importantly, there were two victims.’ In the Court’s view, there was little mitigation. Although F. was only 16 years of age when he embarked upon the abuse, he had sufficient maturity to know that what he was doing was wrong even then and continued offending as an adult. He intimidated his victims into keeping quiet for years. Thereafter, he may not have committed any sexual offences but he has lived a far from exemplary life. Very little weight, therefore, can be placed on the passage of time in his case.
Given the very serious nature of the offences, the harm caused and the high level of culpability, the total sentence, though severe, had not been manifestly excessive (R v Forbes).
Concluding Note
The tension will be readily apparent between (1) the public interest associated with the pursuit of serious crime, as evidenced by enduring harm to the victim, unabated by passage of time, and (2) proper consideration of the age and stage of personal development of the youthful perpetrator, having regard to what has since ensued. Any such case has to be ‘looked at in the round’, 13 reflecting how a juvenile of the perpetrator’s age at time of offence would then have been dealt with, changing sensibilities in respect of the sanctioned conduct, how a juvenile of the perpetrator’s age if he offended in the present day would be dealt with and the perpetrator’s degree of success in distancing himself from that youthful misconduct.
Although the Court of Appeal has acknowledged that age and immaturity at time of offending have ‘a considerable bearing’ on culpability, in line with the more individualised approach that should pervade youth justice, the historic offender is not well placed to have this recalled, considered and appreciated sensitively, and it is striking how limited the attention to same has been in recent reported instances. 14 Only in SM and RM (Illustration 1) do we learn anything of the quality of a perpetrator’s childhood, and even in that instance the significance accorded was relatively muted, evidencing limited understanding of what was almost certainly the disturbed state of mind of a boy who had himself been exposed to gross sexual victimisation, yet nearly four decades on was deemed to merit 7 years’ imprisonment. The inference drawn in respect of the offender’s stage of development in adolescence in GJH (Illustration 5) from his subsequent career as a teacher appears careless in its reliance on glib assumption.
As regards those who go on to offend in adult life, recent judgements suggest a similar airy carelessness in interpreting subsequent offending. In Rouse (Illustration 6), the defendant was readily characterised as an ‘entrenched paedophile’ on the basis of his further sexual offending a quarter of a century following his teenage abusive behaviour, without any reference to the qualities of that subsequent offending, whether that stood any convincing comparison with his juvenile misconduct and whether there had been any evidence of desistance in the interim. Furthermore, the basis in principle for regarding the subsequent offending as a factor that serves to aggravate the historic offending appears highly questionable. Unless the subsequent offending serves to throw direct light on the nature of the earlier misconduct, for example, disclosing nature of motivation, degree of planning or other elements that would otherwise not be apparent, it seems more appropriate to interpret this as speaking to loss of personal mitigation that ensuing good behaviour would earn.
Finally, is there a case for introducing a statute of limitations in this jurisdiction (as suggested recently by Mason, 2015)? Might this not have been appropriate in respect of B. (Illustration 3), particularly if his juvenile offending had stopped after his abuse of his first victim? Such a limitation could appropriately apply, to certain offending, outwith homicide, where the perpetrator was aged under 15 and there has been no further offending for, say, 15 years.
Footnotes
Funding
The author received no financial support for the research, authorship, and/or publication of this article.