When sentencing an adult for a child offence of rape committed when the Children's Services Act 1965 was in force, s 144(3)(a) of the Juvenile Justice Act 1992 does not limit the sentence to two years imprisonment, because indefinite detention during Her Majesty's pleasure was available under s 63(1) of the 1965 Act. The expression 'have regard to' in s 144(2) does not tie the court to the maximum sentence that could have been imposed on a child. Capacity under s 29(2) of the Criminal Code may be proved from surrounding circumstances including the accused's own statements at the time of the offence.
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