Tricky task of sentencing the young for serious crimes

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A videolink was used for the girl to give evidence to the Old Bailey

Two 11-year-old boys have been given a three-year supervision order for the attempted rape of an eight-year-old girl in a west London park. But how does the offenders' age affect the sentence?

The judge's task in sentencing such young defendants for such serious offences is not an easy one.

The Definitive Guideline on Sentencing Youths in England and Wales, issued by the Sentencing Guidelines Council in November 2009, makes it clear that the age of the defendants is widely recognised as requiring a different approach to that applied to adults.

The lower their age, the more marked the difference. In part this is because children will not have the same understanding of their actions upon other people or an appreciation of the distress they might cause, and because a young person will yield to temptation more easily, especially where peer pressure is exerted.

Key elements

Young people are also more likely to benefit from being given a greater opportunity to learn from their mistakes, and there is a recognition that custody is likely to have a greater impact on young people.

However, the sentence must remain proportionate to the seriousness of the offence. An adult convicted of rape with no particularly aggravating features would be facing a five-year custodial sentence.

There would be a small reduction of perhaps a year because it was an attempted rape. That is clearly no starting point for defendants aged 10 at the time of the offence.

The key elements to determining the sentence of a young person convicted of attempted rape will be:

  • Their age (chronological and emotional)
  • The seriousness of the offence
  • The likelihood of further offences being committed
  • The extent of harm likely to result from those further offences.

In the current case the defendants' age puts them at the bottom end of the range of available sentences. The facts of the offence also appear to place it there.

There was no violence used. This was not the child equivalent of walking the victim into the woods at knifepoint. The likelihood of further offending is also likely to have been considered as low.

Expert's report

In addition, the judge must have regard to the welfare of the young defendants. He will rely heavily on the Pre-Sentence Report compiled by the Probation Service.

In a case of such young children, there is likely to be a psychologist's or psychiatrist's report.

If there is no custodial element to the sentence then it is likely to be in the form of a supervision order which places the defendant under the supervision of a local authority, an officer of a local probation board or a member of a youth offending team.

The terms of the order can cover foster parenting and residence, drug treatment, education and treatment that addresses the offending behaviour, such as some form of cognitive behavioural therapy which gets to the root of why the children offended.

The duty of the supervisor is to "advise, assist and befriend" the offender, and the number of days on which they can give directions to the offender is capped at 180.

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