Introduction
It sounds an extremely disturbing, and very difficult, case. A 12 year old boy (unnamed of course) pleaded guilty and was sentenced on 25th August 2016 of raping his sister twice.
He was referred to a Youth Offending Panel for 12 months – colloquially known as a Referral Order. This mean that he will be referred to a Youth Offending Team who will draft a ‘contract’ with him and create a plan for the year with a view to ensure that he desk not reoffend.
Why wasn’t this in the Crown Court?
Rape is an offence which is indictable only – which means that if allegedly committed by an adult it can only be heard in the Crown Court.
There are different rules for youths. Apart from a few offences (such as murder) the view is that youths are much better being dealt with in the Youth Court, which is supposed to be specially designed for young people.
With someone who was older (say 16 or 17) it may well be that the case would end up in the Crown Court but given that this boy was only 12, and 11 at the time of the rapes, different considerations apply
Why wasn’t he sent to prison?
If he had been an adult he would have been. The starting point would have been 8-10 years.
But it is recognised across the world that children are different. They are more impetuous, less developed, and ultimately less culpable. Also, the purpose of punishment is different when you are dealing with children – it is more about rehabilitation, in part because youths are more able to change.
The rules on sentencing adults is complicated. It is far more complicated for youths. But basically, in this case it seems that the Judge concluded (on the face of it clearly correctly) that the boy was not ‘dangerous’ in the terms of the legislation (which would require a sentence of at least 4 years) and it was not even a case where a sentence of more than 2 years would have been needed.
It seems that although the boy has a very troubled background, he had not been in trouble with the police before. In light of all of that, there was only one sentence available to the District Judge, and that is the sentence that she passed.
In that, the Judge seems to be right in any event. A sensible way of dealing with a very difficult case.