Sexual assault of a child under 13
Triable either way
Maximum: 14 years’ custody
Offence range: Community order – 9 years’ custody
For offences committed on or after 3 December 2012, this is an offence listed in Part 1 of Schedule 15B for the purposes of section 224A (life sentence for second listed offence) of the Criminal Justice Act 2003.
For convictions on or after 3 December 2012 (irrespective of the date of commission of the offence), this is a specified offence for the purposes of section 226A (extended sentence for certain violent or sexual offences) of the Criminal Justice Act 2003.
In accordance with section 120 of the Coroners and Justice Act 2009, the Sentencing Council issues this definitive guideline. It applies to all offenders aged 18 and older, who are sentenced on or after 1 April 2014.
Section 125(1) of the Coroners and Justice Act 2009 provides that when sentencing offences committed on or after 6 April 2010:
“Every court –
- must, in sentencing an offender, follow any sentencing guideline which is relevant to the offender’s case, and
- must, in exercising any other function relating to the sentencing of offenders, follow any sentencing guidelines which are relevant to the exercise of the function,
unless the court is satisfied that it would be contrary to the interests of justice to do so.”
This guideline applies only to offenders aged 18 and older. For sentencing children and young people, see:
- Sentencing children and young people: sexual offences
- Sentencing children and young people - overarching principles
Structure, ranges and starting points
For the purposes of section 125(3)–(4) of the Coroners and Justice Act 2009, the guideline specifies offence ranges – the range of sentences appropriate for each type of offence. Within each offence, the Council has specified different categories which reflect varying degrees of seriousness. The offence range is split into category ranges – sentences appropriate for each level of seriousness. The Council has also identified a starting point within each category.
Starting points define the position within a category range from which to start calculating the provisional sentence. Starting points apply to all offences within the corresponding category and are applicable to all offenders, in all cases. Once the starting point is established, the court should consider further aggravating and mitigating factors and previous convictions so as to adjust the sentence within the range. Starting points and ranges apply to all offenders, whether they have pleaded guilty or been convicted after trial. Credit for a guilty plea is taken into consideration only at step four in the decision making process, after the appropriate sentence has been identified.
Step 1 – Determining the offence category
The court should determine which categories of harm and culpability the offence falls into by reference only to the tables below.
- Severe psychological or physical harm
- Violence or threats of violence
- Forced/uninvited entry into victim’s home
- Touching of naked genitalia or naked breast area
- Prolonged detention/sustained incident
- Additional degradation/humiliation
- Child is particularly vulnerable due to extreme youth and/or personal circumstances
- Factor(s) in categories 1 and 2 not present
- Significant degree of planning
- Offender acts together with others to commit the offence
- Use of alcohol/drugs on victim to facilitate the offence
- Grooming behaviour used against victim
- Abuse of trust
- Previous violence against victim
- Offence committed in course of burglary
- Sexual images of victim recorded, retained, solicited or shared
- Deliberate isolation of victim
- Commercial exploitation and/or motivation
- Offence racially or religiously aggravated
- Offence motivated by, or demonstrating, hostility to the victim based on his or her sexual orientation (or presumed sexual orientation) or transgender identity (or presumed transgender identity)
- Offence motivated by, or demonstrating, hostility to the victim based on his or her disability (or presumed disability)
- Factor(s) in category A not present
Step 2 – Starting point and category range
Having determined the category, the court should use the corresponding starting points to reach a sentence within the category range set out below. The starting point applies to all offenders irrespective of plea or previous convictions. Having determined the starting point, step two allows further adjustment for aggravating or mitigating features, set out below.
A case of particular gravity, reflected by multiple features of culpability or harm in step one, could merit upward adjustment from the starting point before further adjustment for aggravating or mitigating features, set out below.
Where there is a sufficient prospect of rehabilitation, a community order with a sex offender treatment programme requirement under section 202 of the Criminal Justice Act 2003 can be a proper alternative to a short or moderate length custodial sentence.
|Category 1||Starting point
6 years’ custody
4 years’ custody
4 – 9 years’ custody
3 – 7 years’ custody
|Category 2||Starting point
4 years’ custody
2 years’ custody
3 – 7 years’ custody
1 – 4 years’ custody
|Category 3||Starting point
1 year’s custody
26 weeks’ custody
26 weeks’ – 2 years’ custody
High level community order – 1 year’s custody
The seriousness of the offence should be the initial factor in determining which requirements to include in a community order. Offence-specific guidelines refer to three sentencing levels within the community order band based on offence seriousness (low, medium and high). See below for non-exhaustive examples of requirements that might be appropriate in each.
At least one requirement MUST be imposed for the purpose of punishment and/or a fine imposed in addition to the community order unless there are exceptional circumstances which relate to the offence or the offender that would make it unjust in all the circumstances to do so. For further information see Imposition of community and custodial sentences.
A suspended sentence MUST NOT be imposed as a more severe form of community order. A suspended sentence is a custodial sentence.
|Offences only just cross community order threshold, where the seriousness of the offence or the nature of the offender’s record means that a discharge or fine is inappropriate
In general, only one requirement will be appropriate and the length may be curtailed if additional requirements are necessary
|Offences that obviously fall within the community order band||Offences only just fall below the custody threshold or the custody threshold is crossed but a community order is more appropriate in the circumstances
More intensive sentences which combine two or more requirements may be appropriate
|Suitable requirements might include:
||Suitable requirements might include:
||Suitable requirements might include:
* If order does not contain a punitive requirement, suggested fine levels are indicated below:
BAND A FINE
BAND B FINE
BAND C FINE
Fuller information and sentencing flowcharts are available at Imposition of Community and Custodial Sentences definitive guideline.
The approach to the imposition of a custodial sentence should be as follows:
1) Has the custody threshold been passed?
- A custodial sentence must not be imposed unless the offence or the combination of the offence and one or more offences associated with it was so serious that neither a fine alone nor a community sentence can be justified for the offence.
- There is no general definition of where the custody threshold lies. The circumstances of the individual offence and the factors assessed by offence-specific guidelines will determine whether an offence is so serious that neither a fine alone nor a community sentence can be justified. Where no offence specific guideline is available to determine seriousness, the harm caused by the offence, the culpability of the offender and any previous convictions will be relevant to the assessment.
- The clear intention of the threshold test is to reserve prison as a punishment for the most serious offences.
2) Is it unavoidable that a sentence of imprisonment be imposed?
- Passing the custody threshold does not mean that a custodial sentence should be deemed inevitable. Custody should not be imposed where a community order could provide sufficient restriction on an offender’s liberty (by way of punishment) while addressing the rehabilitation of the offender to prevent future crime.
- For offenders on the cusp of custody, imprisonment should not be imposed where there would be an impact on dependants which would make a custodial sentence disproportionate to achieving the aims of sentencing.
3) What is the shortest term commensurate with the seriousness of the offence?
- In considering this the court must NOT consider any licence or post sentence supervision requirements which may subsequently be imposed upon the offender’s release.
4) Can the sentence be suspended?
- A suspended sentence MUST NOT be imposed as a more severe form of community order. A suspended sentence is a custodial sentence. Sentencers should be clear that they would impose an immediate custodial sentence if the power to suspend were not available. If not, a non-custodial sentence should be imposed.
The following factors should be weighed in considering whether it is possible to suspend the sentence:
Factors indicating that it would not be appropriate to suspend a custodial sentence
Factors indicating that it may be appropriate to suspend a custodial sentence
Offender presents a risk/danger to the public
Realistic prospect of rehabilitation
Appropriate punishment can only be achieved by immediate custody
Strong personal mitigation
History of poor compliance with court orders
Immediate custody will result in significant harmful impact upon others
The imposition of a custodial sentence is both punishment and a deterrent. To ensure that the overall terms of the suspended sentence are commensurate with offence seriousness, care must be taken to ensure requirements imposed are not excessive. A court wishing to impose onerous or intensive requirements should reconsider whether a community sentence might be more appropriate.
Whenever the court reaches the provisional view that:
- the custody threshold has been passed; and, if so
- the length of imprisonment which represents the shortest term commensurate with the seriousness of the offence;
the court should obtain a pre-sentence report, whether verbal or written, unless the court considers a report to be unnecessary. Ideally a pre-sentence report should be completed on the same day to avoid adjourning the case.
Magistrates: Consult your legal adviser before deciding to sentence to custody without a pre-sentence report.
Below is a non-exhaustive list of additional factual elements providing the context of the offence and factors relating to the offender. Identify whether any combination of these, or other relevant factors, should result in an upward or downward adjustment from the starting point. In particular, relevant recent convictions are likely to result in an upward adjustment.
In some cases, having considered these factors, it may be appropriate to move outside the identified category range.
Statutory aggravating factors
- Previous convictions, having regard to a) the nature of the offence to which the conviction relates and its relevance to the current offence; and b) the time that has elapsed since the conviction
- Offence committed whilst on bail
Other aggravating factors
- Specific targeting of a particularly vulnerable child
- Blackmail or other threats made (where not taken into account at step one)
- Location of offence
- Timing of offence
- Use of weapon or other item to frighten or injure
- Victim compelled to leave their home, school, etc
- Failure to comply with current court orders
- Offence committed whilst on licence
- Exploiting contact arrangements with a child to commit an offence
- Presence of others, especially other children
- Any steps taken to prevent the victim reporting an incident, obtaining assistance and/or from assisting or supporting the prosecution
- Attempts to dispose of or conceal evidence
- Commission of offence whilst under the influence of alcohol or drugs
- Victim encouraged to recruit others
- No previous convictions or no relevant/recent convictions
- Previous good character and/or exemplary conduct*
- Age and/or lack of maturity where it affects the responsibility of the offender
- Mental disorder or learning disability, particularly where linked to the commission of the offence
* 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. Where previous good character/exemplary conduct has been used to facilitate the offence, this mitigation should not normally be allowed and such conduct may constitute an aggravating factor.
In the context of this offence, previous good character/exemplary conduct should not normally be given any significant weight and will not normally justify a reduction in what would otherwise be the appropriate sentence.
Step 3 – Consider any factors which indicate a reduction, such as assistance to the prosecution
The court should take into account sections 73 and 74 of the Serious Organised Crime and Police Act 2005 (assistance by defendants: reduction or review of sentence) and any other rule of law by virtue of which an offender may receive a discounted sentence in consequence of assistance given (or offered) to the prosecutor or investigator.
Step 4 – Reduction for guilty pleas
The court should take account of any potential reduction for a guilty plea in accordance with section 144 of the Criminal Justice Act 2003 and the guideline for Reduction in Sentence for a Guilty Plea (where first hearing is on or after 1 June 2017, or first hearing before 1 June 2017).
Step 5 – Dangerousness
The court should consider whether having regard to the criteria contained in Chapter 5 of Part 12 of the Criminal Justice Act 2003 it would be appropriate to award a life sentence (section 224A) or an extended sentence (section 226A). When sentencing offenders to a life sentence under these provisions, the notional determinate sentence should be used as the basis for the setting of a minimum term.
Step 6 – Totality principle
If sentencing an offender for more than one offence, or where the offender is already serving a sentence, consider whether the total sentence is just and proportionate to the offending behaviour.
Step 7 – Ancillary orders
The court must consider whether to make any ancillary orders. The court must also consider what other requirements or provisions may automatically apply.
- Ancillary orders – Magistrates’ Court
- Ancillary orders – Crown Court Compendium, Part II Sentencing, s7
Slavery and trafficking prevention orders
Modern Slavery Act 2015, s14
A court may make a slavery and trafficking prevention order against an offender convicted of a slavery or human trafficking offence, if satisfied that:
- there is a risk the offender may commit a slavery or human trafficking offence; and
- it is necessary to make the order for the purpose of protecting persons generally, or particular persons, from the physical or psychological harm which would be likely to occur if the offender committed such an offence.
Automatic orders on conviction
The following requirements or provisions are not part of the sentence imposed by the court but apply automatically by operation of law. The role of the court is to inform the offender of the applicable requirements and/or prohibition.
|Requirement or provision||Statutory reference|
A relevant offender automatically becomes subject to notification requirements, obliging him to notify the police of specified information for a specified period. The court should inform the offender accordingly.
The operation of the notification requirement is not a relevant
|Sections 80 to 88 and Schedule 3 of the Sexual Offences Act 2003|
Protection for children and vulnerable adults
A statutory scheme pursuant to which offenders will or may be barred from regulated activity relating to children or vulnerable adults, with or without the right to make representations,
Section 2 and Schedule 3 of the Safeguarding Vulnerable Groups Act 2006
Safeguarding Vulnerable Groups Act 2006 (Prescribed Criteria and
Step 8 – Reasons
Section 174 of the Criminal Justice Act 2003 imposes a duty to give reasons for, and explain the effect of, the sentence.
Step 9 – Consideration for time spent on bail
The court must consider whether to give credit for time spent on bail in accordance with section 240A of the Criminal Justice Act 2003.