A man who had sex with a 12-year-old while his mother and step-brother were in the same house has been spared jail after the judge heard that she “consented” to intercourse.
Harry Smith, 19, of Browns Wood, Milton Keynes, appeared at Aylesbury Crown Court charged with sexual activity with a minor on Tuesday, December 2.
The court heard how Smith, who was 17 at the time of the offence, invited the 12-year-old girl to his home after meeting her through friends.
The victim arrived at the house and saw that Smith’s mother and step-brother were also in the house.
She and Smith then went upstairs where they listened to music.
During the course of the visit the victim and Smith had sex three times, but the court heard that because the victim was below the age of consent, she was not able to legally agree to take part.
Smith’s defence told how there was no evidence of force, coercion or grooming and that the youngster was a willing participant.
A few weeks later the victim told friends at school about the incident.
The 2012 incident was only reported in May this year when the girl’s mother found out what had happened.
She had gone upstairs to say goodnight to her daughter, and saw that the girl had a mobile phone that she didn’t know about containing messages and pictures of a sexual nature.
The messages had been sent between the girl and unknown men, some of who are thought to be from other countries.
She sat down with her daughter to talk about what had happened, and the girl assured her that had been no sexual activity with one of the men in the messages.
But she did admit to having sex on one occasion, and told her mother about the incident with Smith.
The court heard how the horrified mother went to Smith’s home, and the home of another boy whose number was found on the phone.
She spoke to Smith’s mother, who said that she had been concerned about her son being close to younger girls, and had advised him to remove any younger children’s profiles from his Facebook account.
Smith, who has not been subject to any other sex allegations and had no criminal record, pleaded guilty to the charges at the first opportunity, but said that although he knew the victim was younger than him, he did not know that she was only 12.
It was also said in court that the police do not believe that Smith poses a risk to young girls.
Judge Kristina Montgomery adjourned the hearing temporarily, so that more sentencing guidance could be provided by the probation service.
She said that she felt Smith could benefit from assistance in “his thinking skills” but that current guidelines for this type of crime were set at a minimum of six years in jail.
When the hearing re-commenced Judge Montgomery sentenced Smith to 27 months in prison suspended for three years, with a supervision order for the entire term.
He must also sign the Sex Offenders Register for ten years, and complete an intensive sex offenders rehabilitation programme.
Judge Montgomery said: “I don’t think that what I am about to do will necessarily be approved of at the highest level.
“I am not going to send this young man to prison, but this matter will be resolved with a custodial sentence suspended for the highest duration possible.”
She then told Smith: “Let anyone in your peer group who thinks you have been hard done by realise that actually you have been very lucky.
“Make sure people know it because others who commit offences of this type may not find themselves in your position.”