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	England and Wales Court of Appeal (Criminal Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Criminal Division) Decisions >> Legg, R. v [2025] EWCA Crim 258 (06 February 2025) URL: http://www.bailii.org/ew/cases/EWCA/Crim/2025/258.html Cite as: [2025] EWCA Crim 258

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IN THE COURT OF APPEAL CRIMINAL DIVISION
ON APPEAL FROM THE CROWN COURT AT TEESIDE
His Honour Judge Christopher Smith

REFERENCE UNDER SECTION 36 OF THE CRIMINAL JUSTICE ACT 1988

		Royal Courts of Justice Strand, London WC2A 2LL
		6 February 2025

LORD JUSTICE EDIS:-

1. This is an application by HM Solicitor General for leave to refer a sentence to this Court under section 36 of the Criminal Justice Act 1988 on the ground that it was unduly lenient. The Solicitor General submits that the sentence ought to be increased, leave having been given.
2. The first thing we need to say is that the provisions of the Sexual Offences (Amendment) Act 1992 apply in this case. There are three victims to whom we will refer as A, B and C, and no matter may be published during their lifetime which tends to identify them as victims of these offences. That will apply unless and until it is varied by the Court, which it has not been and there is no reason to suppose that it ever will be.
3. The offender is Dominic Legg. He is 19 years old, having been born on 11 March 2005. In June 2024, following a trial in the Crown Court at Teesside before His Honour Judge Christopher Smith and a jury, the offender was convicted of 13 serious sexual offences against three young female victims, A, B and C. Against A, there were four counts of sexual assault on a child under the age of 13. These were all multiple-incident counts, alleging offences committed on no fewer than five occasions. Against B, there were three counts of rape of a child under the age of 13. These were not multiple-incident counts. Against C, there was one count of rape, one count of attempted sexual activity with a child, three counts of sexual activity with a child (two of which involved penetrative sexual activity and one non-penetrative sexual activity) and, finally, a count of engaging in sexual activity in the presence of a child. These allegations in relation to C did not involve multiple-incident counts.
4. The sexual assault offences against A were offences contrary to section 7 of the Sexual Offences Act 2003 because she was between 6 and 10 years old when they happened and the offender was between 11 and 15 years old. The rape offences against B were contrary to section 5(1) of the Sexual Offences Act 2003 because she was between 7 and 9 years old at the time of the offences and the offender was between 14 and 15. The offences against C were all committed when she was 14 years old and at a time when the offender was about the same age as C was. Those offences were charged contrary to section 1(1) of the Criminal Attempts Act 1981 and section 13(1) of the Sexual Offences Act 2003.
5. On 11 November 2024 the offender was sentenced by the same judge to a total term of five years and nine months' detention in a young offender institution. This was made up as follows: in respect of the four counts involving A, there were sentences of nine months' detention which were ordered to run concurrently with each other but consecutively to the total terms which were imposed in respect of the offences against B and C. So far as B is concerned, the total term was three years and three months' detention. In respect of C, the total term was 21 months. For B, there were three sentences of three years and three months' detention to run concurrently with each other but consecutively to the other two total terms. In respect of C, the term of 21 months' detention was imposed in respect of the offence of rape and also in respect of the other significantly less serious sexual offences against her. Other orders were imposed as is necessary in cases of this kind but it is unnecessary to set those out here.
6. We should start by acknowledging the care with which the judge approached this very difficult case of very serious sexual offending by a child who may have been about 11 years old when it started, although the rape offences occurred when he was 14 years old and perhaps just after his 15th birthday. The judge was aware of all the relevant guidelines and, in particular, of the guideline in relation to sentencing children and young people and the guideline in relation to totality. The judge was also aware of the guidance from this Court given in the decision in R v Ahmed, Stansfield, Priestley, RW Hodgkinson [2023] EWCA Crim 281, [2023] 2 CrAppR (S) 32. Having applied the offence-specific guidelines, the judge concluded that an adult offender would have received consecutive sentences totalling 24½ years to reflect all of the offending before making reductions for totality and then, secondly, for the very young age of the offender.
7. The Solicitor General does not challenge the assessment by the judge of that total term for a notional adult offender of 24½ years. It is, therefore, not necessary for the purposes of this judgment to analyse in great detail the judge's approach to the offence-specific guidelines or to the offences themselves in detail. The issue we have to consider is whether, having arrived at that correct starting point, the judge then discounted too much to take account of totality and the age of the offender. The resulting sentence, as will be apparent from what we have already said, was a total term of approximately 25 per cent of the adult tariff.
8. It is right also to record that the judge carefully applied the provisions of the dangerousness sentencing regime to this case and to the material before him. He had a pre-sentence report and a psychiatric report. Although it is not necessary for us to examine the judge's reasoning in respect of his decision not to impose an extended sentence, because that is not challenged by the Solicitor General, it is right, nevertheless, to record as being a relevant factor in this sentencing exercise that now, having reached the age of 19, the offender is assessed as being dangerous for the purposes of that statutory regime. The judge's decision not to impose an extended sentence was, therefore, itself an exercise of some measure of leniency in favour of the offender.
9. With that introduction, we will turn to the facts in a little more detail.
10. The offender and had access to A and B, two very much younger girls, in a family context. C was attacked during the course of a short-term relationship between the two of them in which she regarded herself, for a brief period of time, as being his girlfriend. They were both at or about the ages of 14 when that relationship occurred.
11. So far as the offences against A and B are concerned, as we have already said, they were committed in a family context, which means that they were committed in places and circumstances where they should have felt safe.
12. In short summary, the offending against A occurred when she would stay at the home of an older family member, now and again, and would encounter the offender there because he would also sometimes stay there. On multiple occasions in that house he attacked her in various ways. He touched her vagina under her clothing; this was uncomfortable and painful. On one occasion he struck her when she said no. On other occasions he threatened to strike her if she were to say no again. She was frightened because she believed that he would. He also threatened to kill her if she told anyone. She, finally, told a friend what had happened to her when she was 11 years old. This was some time after it had finished. She told her mother when she was 12 years old. That led to a police investigation in relation to the allegations that she had made.
13. B was raped on three occasions. Two of the offences took place at the house where the offender was living at the time. On the first occasion she was asleep in bed. The offender pulled down her underwear and raped her vaginally. At that time, she was 7 or 8 years old. On another occasion he tried to engage her in sexual activity after she had gone to bed. She refused, and went to sleep. She woke up to find him raping her anally. She challenged him and slapped him in the face. On the third occasion she was, again, anally raped in her bedroom during a family event at her home address. He followed her upstairs when she went to the lavatory. He told her to go into her bedroom where he raped her on the floor while other members of the family were downstairs and outside. Eventually, she reported what had happened to a member of staff at her school, and the police were involved and an investigation began into that.
14. It is worth pointing out at this stage that that offence during the family event involved an element of reckless risk-taking which is not reassuring in the context of the assessment of whether or not he represents a danger.
15. So far as C is concerned, she was of course significantly older than A and B but she was still only 14 years old when the offending took place. The relationship began. Two days into it she invited him to her home. In her bedroom he attempted to penetrate her vagina with his finger. She told him not to do so because, once again, there were people in the house. She tried to pull his hand away but he persisted. He only stopped when they were interrupted by another member of the family coming in to the room. That is the offence which was charged as an attempt. From then on the offender preferred not to go to C's house and they met instead at his home. The rest of the offending occurred in his bedroom at that place. He masturbated himself in front of her. He caused her to masturbate him. He penetrated her vagina with his finger. He forced her hand on to his penis. And, finally, and importantly, he raped her. On all these occasions she said no, and he knew perfectly well that she did not want him to do any of this to her.
16. The rape occurred when she had found some letters which showed that the offender had been unfaithful to her and this caused her to become upset. She was in a vulnerable and unhappy state of which the offender then took advantage by pressuring her into having sexual intercourse with him. At first she agreed but quickly changed her mind and she told him to stop on five occasions before he finally did. The relationship finished very soon after that event. She subsequently told her new boyfriend who told her to tell her mother, which she did. Later she saw the offender at college. This caused her to panic and she told a friend. This incident caused her great upset and unhappiness as she was later to make clear in her victim personal statement.
17. The offender was arrested and charged with all of these offences. Ultimately, they came to trial with the result already explained. He has no previous convictions, cautions, warnings or reprimands recorded against him.
18. The case was listed for sentence some months after the end of the trial because the judge, very properly, appreciated that it was necessary to explore important aspects of the case before sentence could be determined. When the court convened for that purpose there was a sentencing note from the prosecution and one on behalf of the offender. There was a pre-sentence report which identified difficulties in the offender's upbringing and concluded that he presented a high risk of serious harm to children under the age of 18, particularly pre-pubescent and pubescent girls. There was some evidence of a risk to himself, of suicidal ideation and incidents of self-harm. The psychiatric report concluded that there were some features of an emotionally unstable personality disorder which may have contributed to his difficulties. The doctor thought that the offender would require ongoing support from the medical health team to manage his difficulties. He did not, however, require treatment in a hospital.
19. There were also victim personal statements by each of the three victims, and the mothers of A and B contributed evidence about their perception of the impact of what had happened on their daughters. The judge read those, as have we. They are powerful documents which identify in each case the very grave harm which has been done to these young girls by this offending.
20. What is of particular significance in the sentencing exercise in our judgment is that these victim personal statements were taken in 2024, the offending having taken place years earlier. As will be apparent, the court is required in cases of this kind to reach an assessment of what the sentence might have been on a notional adult but also to have regard to what the sentence might have been had the offender been prosecuted and convicted as soon after the offences were committed. Had that happened and had the sentencing exercise taken place when the girls were much younger, the court might have had a degree of hope that the psychological harm which they had sustained might alleviate over the years to come. In the sentencing exercise which actually happened, informed as it was by these victim personal statements, there was much less scope for any optimism. Of course, the court profoundly hopes that the consequences with which these young girls have been left will alleviate with time. The fact is they have continued now over a period of years and are still acutely distressing, and that is a relevant factor in the sentencing exercise.
21. The judge, as is apparent from what we have already said, approached the case by assessing the sentences for the offending in relation to each of the different victims and imposing concurrent terms on each of them but making those concurrent terms consecutive to each other. The result of that was that he imposed a number of terms which are strikingly short for the offending for which they were imposed. We refer, to illustrate the point, to the sentence of 21 months' detention for an offence of rape against C.
22. The Solicitor General has helpfully calculated the total discounts against the notional adult sentences which were applied to each of the total terms in respect of each of the victims. So far as A is concerned, the judge said that the notional sentence for an adult would be in the region of five years' custody. The reduction of that term to the nine months which was ultimately imposed is approximately 85 per cent. The judge determined the notional sentence for an adult in the case of the rapes of B of about 11 years' custody. There was then a reduction, to reflect his age at the time, of four years' custody which is approximately 63 per cent and a further reduction to three years and three months to reflect totality. So far as C is concerned, the judge found that a notional sentence for an adult of around eight and a-half years would have been appropriate. There was then a reduction, which was not specified, to reflect the offender's age and a final reduction for totality, leaving concurrent sentences of 21 months' detention for all of the offences against C. This is a reduction of approximately 80 per cent from the original figure.
23. These are very substantial reductions, and we have already observed that the effect of this approach to sentencing is to cause some sentences to appear to be strikingly short. That appearance in the case of the offending against C is exacerbated by the fact that the sentence for rape is the same as the sentence for the other significantly less serious offences. This is an odd outcome.
24. Essentially, the Solicitor General makes two submissions. First, it is submitted that the reduction to reflect age was too generous. It is accepted that age is an important factor which requires a reduction, but it is submitted that the reduction in this case was too great. Secondly, it is submitted that, having regard to the number and seriousness of the offences, and the aggravating factors, the aggregate sentence which was finally arrived at and imposed by the judge was not just and proportionate to the totality of the offending behaviour.

Discussion and Decision

25. The first issue which should be addressed is the impact of the proper approach of the guidelines and Court of Appeal authority to sentencing young people who have crossed a significant age threshold between the commission of the offence and the sentence. The guideline states:

"6.1 There will be occasions when an increase in the age of a child or young person will result in the maximum sentence on the date of the finding of guilt being greater than that available on the date on which the offence was committed (primarily turning 12, 15 or 18 years old).

6.2 In such situations the court should take as its starting point the sentence likely to have been imposed on the date at which the offence was committed. This includes young people who attain the age of 18 between the commission and the finding of guilt of the offence but when this occurs the purpose of sentencing adult offenders has to be taken into account, which is:

• the punishment of offenders;

• the reduction of crime (including its reduction by deterrence);

• the reform and rehabilitation of offenders;

• the protection of the public; and

• the making of reparation by offenders to persons affected by their offences."

26. When sentencing children, the court is required by the Children and Young Person Act 1993 to have regard to the welfare of the child being sentenced. In cases such as the present, where the person being sentenced is not a child but committed offences when he was, the court is not required to have regard to his welfare but to those factors identified in the Sentencing Act 2020 as constituting the purposes of sentencing adult offenders.
27. In R v Ahmed, the court, presided over by Lord Burnett of Maldon CJ, examined different lines of authority and the guideline and established certain points. They are these:

"i) Whatever may be the offender's age at the time of conviction and sentence, the Children guideline is relevant and must be followed unless the court is satisfied that it would be contrary to the interests of justice to do so.

ii) The court must have regard to (though is not necessarily restricted by: see (v) below) the maximum sentence which was available in the case of the offender at or shortly after the time of his offending ...

iii) The court must take as its starting point the sentence which it considers was likely to have been imposed if the child offender had been sentenced shortly after the offence.

iv) If in all the circumstances of the case the child offender could not in law have been sentenced (at the time of his offending) to any form of custody, then no custodial sentence may be imposed.

v) Where some form of custody was available, the court is not necessarily bound by the maximum applicable to the child offender. The court should, however, only exceed that maximum where there is good reason to do so. In this regard the mere fact that the offender has now attained adulthood is not in itself a good reason ...

vi) The starting point taken in accordance with (iii) above will not necessarily be the end point. Subsequent events may enable the court to be sure that the culpability of the child offender was higher, or lower, than would likely have been apparent at the time of the offending. They may show that an offence was not, as it might have seemed at the time, an isolated lapse by a child, but rather a part of a continuing course of conduct. The passage of time may enable the court to be sure that the harm caused by the offending was greater than would likely have been apparent at that time. Because the court is sentencing an adult it must have regard to the purposes of sentencing set out in section 57 of the Sentencing Code. In each case, the issue for the court to resolve will be whether there is good reason to impose on the adult a sentence more severe than he would have been likely to have received if he had been sentenced soon after the offence as a child."

28. Finally, in reviewing guidelines and authority, we refer to paragraph 6.46 of the guideline on sentencing children which reads as follows:

"6.46 When considering the relevant adult guideline, the court may feel it appropriate to apply a sentence broadly within the region of half to two-thirds of the adult sentence for those aged 15-17 and allow a greater reduction for those aged under 15. This is only a rough guide and must not be applied mechanistically. In most cases when considering the appropriate reduction from the adult sentence the emotional and developmental age and maturity of the child or young person is of at least equal importance as their chronological age. This reduction should be applied before any reduction for a plea of guilty."

29. In our judgment, the first aspect which requires attention is the judge's approach to totality. The relevant part of the totality guideline requires the court to "test the overall sentence against the requirement that the total sentence is just and proportionate to the offending as a whole". The judge had arrived at a sentence in total for a notional adult at 24½ years. He then made a significant reduction to reflect totality. That reduction was somewhat magnified by the arithmetical approach he took to the exercise, but we question whether that substantial reduction for totality was required in the circumstances of this case at all. It is certainly clear that totality is a relevant factor where multiple offending is committed against the same victim. That was reflected in the way that the judge dealt with identifying the appropriate term for the total offending in respect of each victim.
30. When deciding, however, how the fact that multiple victims were involved should be reflected when considering totality, it is not so clear that a significant reduction is always required. The offending has damaged the lives of three people and the sentence must reflect that. In the end, the court has to test the overall sentence to ensure that it is just and proportionate with the offending as a whole. In our judgment, looking at the sentence for the notional adult, only a modest reduction on this account, was required. It is, therefore, against a total notional sentence of 24½ years (or quite lose to that figure) which the reduction to reflect the age at the time of the offending needs to be judged.
31. We have already observed that one of the factors which is potent in this case is the great harm which these offences have inflicted on the victims and the fact that that harm is enduring. Furthermore, the passage of time means that the offender is known to have matured into an adult who is dangerous. If sentencing when he was 14 years old, the court would have hoped that that might not turn out to be the case.
32. In our judgment, the court, looking at that term of 24½ years, was required to make a very substantial adjustment to reflect the age of the offender both at the time of the offending and at the date of sentence, but in this case we consider that the adjustment that the judge arrived at was excessive with the result that the final sentence was unduly lenient and did not adequately reflect the overall nature of the offending.
33. We will restructure the judge's sentences in order to avoid imposing a very short sentence for an offence of rape and will approach the exercise now by imposing concurrent sentences on all counts which will be calculated so as to produce a total sentence which is appropriate. That total sentence will be a term of eight years' detention. That will be imposed concurrently in respect of the three offences of rape against B. In respect of the offence of rape against C, there will be a concurrent term of seven years' detention which is shorter because she was not such a young child at the time when she was raped as was B, and there was one offence of rape in her case. The other sentences in relation to C will stay the same and will run concurrently. So far as A is concerned, there will be a concurrent term in relation to each of the offences of four years each. All the other orders made by the judge will stand.
34. The end result of this is, therefore, that all the sentences imposed by the judge are quashed with the exception of the offences against C other than the rape offence against her, and are replaced by the sentences which we have just announced giving rise to a total term of eight years' detention in a young offender institution.
35. LORD JUSTICE EDIS: Is there anything else we need to deal with?
36. MS PATTISON: No.
37. LORD JUSTICE EDIS: Mr Abrahams, is there anything else we need to deal with so far as you are aware?
38. MR ABRAHAMS: No, thank you.