The Court of Appeal has found that a sentence imposed on KS for rape was unduly lenient and replaced it with a two-year prison sentence, suspended in full for two years.
The court ruled on 7 December 2023 in an appeal by the Director of Public Prosecutions under section 2 of the Criminal Justice Act 1993. It found that the 106 days’ detention, suspended on conditions for 106 days, imposed when KS was 17 amounted to a substantial departure from an appropriate sentence. The court then resentenced him under a 2023 amendment as if he had been an adult at the time of his original sentence. It suspended the two-year term in its entirety, subject to conditions set out in a Probation Report dated 25 May 2023.
KS was convicted by a majority jury verdict of one count of rape after a trial in the Central Criminal Court from 18 April to 10 May 2023. He was acquitted of a separate count of rape under section 4 of the Criminal Law (Rape) (Amendment) Act 1990. The offence occurred on 26 September 2020, when KS was 14 and the victim was 15. The prosecution case was that she was too intoxicated to consent. KS argued at trial that she had consented or that he did not know she was not consenting and was not reckless. At sentencing, the prosecution accepted that the fault element established for sentencing was recklessness.
The original sentencing judge set an adult headline sentence of seven years, reduced it to 28 months to account for KS’s age and maturity, then to 21 months for other mitigating factors. She reduced it by a further 18 months for delay, leaving 106 days, which she suspended. The Court of Appeal said a 50% reduction for KS’s age and maturity would have been appropriate, rather than two thirds, but that the difference was not an error of principle warranting intervention. It also found the seven-month reduction for other mitigation was not excessive.
The appeal court held that the 18-month reduction for delay was unjustified and amounted to an error in principle. It also said the sentencing judge had worked backwards from a decision to avoid detention in an adult prison. The appeal court noted that the Children Act 2001 could have allowed detention in Oberstown for up to six months after KS turned 18, making a nine-month term available.
The court said a wholly suspended sentence for rape requires exceptional justification and found this case did not meet that standard. In resentencing, it set a 3.5-year headline term after a 50% youth reduction, then reduced it by 18 months for mitigation, including delay and KS’s continued voluntary engagement with probation. It said committing him to adult prison at this stage would serve no useful purpose.