This week, at Liverpool Crown Court, we successfully represented one of our clients who had previously pleaded guilty to several offences, including causing or inciting a child to engage in sexual activity involving penile penetration of the mouth and possession of extreme pornography.
The maximum sentence for the offence of inciting a child to engage in sexual activity which includes penetration is life imprisonment. Our client received a custodial sentence of 3 years, of which he will serve half.
At PCD Solicitors, we prepare for sentencing of our clients meticulously to ensure the most lenient sentences are given at court.
Here we share some details of our case before the court this week, explaining how conditions like ADHD can affect sentencing.
Preparation for sentence
It is extremely important to correctly prepare and present mitigation to the court at the sentencing hearing. It is the responsibility of the defendant to put forward mitigation to the court. If you do not do this, nobody else will!
The court will typically consider a provisional sentence informed by the culpability of the offender and the harm caused by their offences, then adjust the sentence according to any mitigating factors that may apply – such as mental illness, disability, genuine remorse, or full co-operation with police.
If a defendant accepts that they have committed an offence, but believes their personal circumstances that affected their criminal behaviour should be considered by the court during sentencing, their representatives can present this information to the court.
There are several factors to consider when preparing and presenting mitigation to be considered at the sentencing hearing, which include:
- Preparation by your solicitors
- Evidence against you
- Sentencing Guidelines
- Case Law
- Personal circumstances, including medical and psychological issues
- Specialist barrister
- Expert report
- Counselling
- External agencies
- Probation Service
- Availability of courses in prison
The correct preparation by your solicitor should encompass all of the above points.
For the purpose of this particular article, we are only concentrating on Attention Deficit Hyperactivity Disorder (ADHD) because this was a major factor affecting our client.
The more severe the ADHD, the more relevant it can become in mitigation. In this case, our client had a history of deep personal struggles with the disorder.
What is ADHD?
ADHD is a neurological disorder, which manifests itself from birth or a very young age and is more often seen in males than females. This disorder can run in families, with causes believed to include genetics, brain development, and environmental factors.
The neurodevelopment disorder is characterised by three behavioural traits:
- Inattention
- Hyperactivity
- Impulsivity
ADHD symptoms can vary from one person to another, but these primary traits are most commonly experienced. They can interfere with the person’s ability to study, work, and maintain social relationships.
Inattention can cause difficulty with remembering things, organisation, following instructions, and completing tasks, while hyperactivity and impulsivity can result in restlessness, mood swings, and risk-taking behaviours.
How does ADHD affect criminal behaviour?
In many cases that we deal with, it is the impulsivity trait of ADHD which leads to offending behaviour. In other words, the more impulsive a person with ADHD is, the more likely it is that they will act first and think later – increasing the likelihood of unlawfully acting on sexual thoughts.
Offences such as sexual communications with a child will often be committed impulsively. Many defendants describe their actions as ‘in the spur of the moment’ with no planning or preparation involved, and state that when faced with the opportunity to commit a contact offence, they would not do it.
For someone with ADHD, these ‘spur of the moment’ opportunities present a real problem, because such impulsive behaviour can result in criminal offences being committed very easily and quickly, with direct evidence (internet history and data) leading back to the defendant. At PCD Solicitors, we understand that this type of behaviour can be attributable to a client suffering from ADHD.
Similarly, the memory loss associated with the inattention trait of this condition can have a significant effect on a defendant’s engagement with the police and court process.
For example, during the preparation of a Pre-Sentence Report, the probation officer will want the defendant to discuss their offending in detail, and show genuine remorse for their actions. For someone suffering from ADHD, they may have no recollection of the offending (which may have occurred several years prior), and therefore may appear disinterested and lacking remorse.
In turn, this could directly lead to a judge imposing a harsher sentence than would have otherwise been the case. The physical symptoms of ADHD, such as fidgeting, irritability, or speaking out of turn, could also lead to a defendant being misunderstood by the Probation Service or court.
ADHD as a mitigating factor
In the present case, our client suffered from acute memory loss and impulsivity due to his ADHD condition. At PCD Solicitors, we are familiar with this condition and we know how to obtain evidence to assist with mitigation.
We also have contacts (from earlier cases) with expert doctors, psychologists, and psychiatrists, who we can instruct to produce a medical report specifically addressing the effects of ADHD and the impact they have on the commission of this type of offence.
The medical report we obtained attributed much of our client’s behaviour to ADHD traits that were beyond his control. We ensured the Probation Service had a copy of this report before they prepared their own report, so that the Probation Service could understand from a medical view the issues our client had and how they contributed to the commission of his offence.
This resulted in a more favourable report from the probation officer, and in turn assisted the court in reducing our client's sentence accordingly. This resulted in a much lesser sentence being imposed than ordinarily would have been for an inciting offence involving penetration.
Sentencing Guidelines
The fact that an offender has a mental condition or neurological disorder does not mean this will automatically impact sentencing. If the court is to take this condition into consideration when determining a sentence, the defendant and their legal representative must present credible evidence of mitigating circumstances.
The relevance of a condition such as ADHD in sentencing depends on the nature of the disorder, the extent of the effects it has on the offender’s behaviour, and whether there is a ‘causal connection’ between the disorder and the offence committed.
This will be determined on a case-by-case basis according to the specific facts relevant to the particular case. Medical reports are therefore essential in providing evidence of an offender’s reduced culpability and need for rehabilitation.
‘Causing or inciting a child to engage in sexual activity’
The sentencing categories and custodial sentences for the offence of ‘causing or inciting a child to engage in sexual activity’ are listed below.
| A | B | |
|---|---|---|
| Category 1 | Starting point 13 years’ custody |
Starting point 11 years’ custody |
| Category range 11 – 17 years’ custody |
Category range 10 – 15 years’ custody |
|
| Category 2 | Starting point 8 years’ custody |
Starting point 6 years’ custody |
| Category range 5 – 10 years’ custody |
Category range 3 – 9 years’ custody |
|
| Category 3 | Starting point 5 years’ custody |
Starting point 2 years’ custody |
| Category range 3 – 8 years’ custody |
Category range 1 – 4 years’ custody |