We haven’t yet looked at the ‘new’ s236A sentence, part of the ever more complicated area of the criminal law that is sentencing, but a good example of its use came up on 23rd January 2017.
At the Cardiff Crown Court an unnamed woman was jailed, along with Stuart Bailey, were sentenced to conspiracy to rape, with Ms X (her name was not published for obvious reasons – to protect her daughter’s identity) receiving 9 years and Mr Bailey 13.
They are horrible. From the Guardian – it seems that Mr Bailey met Ms X on the dating website ‘Plenty of Fish’ and his MO was to initiate sexual conversation relating to illegal activities with people he spoke to and see how they reacted.
For whatever reason, Ms X responded positively, and the conversations escalated. They met up and had a sexual encounter, and during the course of that meeting, Mr Bailey saw a photograph of Ms X’s daughter.
This lead to further conversations that were “depraved discussions of a perverted sexual nature“. During these, Ms X sent Mr Bailey photographs of her daughter, including her naked in the bath and in her school uniform ‘with her underwear exposed‘.
Part of the conversation related to a plan between the two of them two drug the daughter and rape her. This lead to a charge of conspiracy to rape a girl under 13.
Although this was, fortunately, not carried out, it had got as far as Ms X drugging her daughter with melatonin.
This came to light when Ms X’s partner (not Mr Bailey) found some of the messages and reported them to the police.
There was a trial where both said that the conversations that they had were mere fantasy, and there was no intention to see it through. The jury disbelieved them and they were both convicted.
In addition, they were convicted of indecent images offences related to the sending of the photographs.
The Judge would have started with the Sentencing Guidelines for Sexual Offences (page 27) and looked at what the sentence would have been had they gone through with it.
It would clearly be culpability A due to the ‘Significant degree of planning’, the fact that there were two of them, the breach of trust (the victim being her daughter), and use of drugs.
It would probably be Harm Level 3 (although it would be arguably Level 2 for a variety of reasons), which would give a starting point of 10 years, with a range of 8-13.
Given that it was a conspiracy, it is a little hard to apply a complete methodical approach, but the sentence that was passed was very much in line with what we would expect.
At the end of the report it is note that they were both “given one year of additional licence to serve“. This is actually quite significant – it is contained in s6 Criminal Justice and Courts Act 2015 and provides that anyone who is convicted of an offence:
- that is rape or assault by penetration of a child under 13
- committed when they are 18 or older
- for which a non-custodial sentence is not merited,
- but neither is a sentence of life imprisonment or an extended sentence
Gets the appropriate prison sentence, with an extra year of licence at the end.
However, the sting is that instead of being released automatically half way through the sentence, the person has to go in front of the Parole Board to get released. If they are not, then they may have to serve the full sentence before being released.
So in this case, instead of being automatically being released after serving 4½ years and being on licence for the next 4½ years, Ms X cannot be released until the Parole Board direct her release, which cannot be before 4½ years. This is unless she serves the full 9 years, in which case she has to be released. Either way, her licence will continue for 10 years from sentence.