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A worrying Court of Appeal Judgment for children facing custody

R v Jordan Bissett [2019] EWCA Crim 1554

The Court of Appeal upheld an immediate custodial sentence of two years for an 18-year-old, who was 15 to 16 at the time of offences relating to the supply of Class A drugs within a county lines context.

Details

JB was 15-years-old when he started engaging in the supply of heroin and cocaine in Wolverhampton. He was arrested at his cousin’s home address on 19 July 2017, and was eventually sentenced on 13 June 2019. The Court accepted that this was a county lines dealing operation, which implicitly acknowledged that JB, present in Wolverhampton, was likely being directed by those in possession of the drug line operating from a nearby ‘major city’.

JB was sentenced to two years’ immediate detention. The sentencing Judge took a starting point of four years and six months’ imprisonment on the applicable adult sentencing guidelines, based on a finding of category 3 (street dealing) and JB purportedly occupying a significant role. As JB was a youth at the time of the offence, the sentencing Judge then applied a reduction from the adult starting point, followed by credit for a Guilty plea, thus coming to a sentence of two years’ detention. On appeal, JB asserted that his sentence should have been suspended, or further reduced.

The Court of Appeal had before it a positive pre-sentence report from the time of sentence, but decided to uphold the sentence of two years’ immediate imprisonment in a youth offender institute.

In doing so, the Court approved the starting point taken by the sentencing Judge, and declined ‘to accede to the submission that the sentence should have been suspended’, because these were ‘grave offences’ which ‘involved Class A drugs.’ The Court further focussed on the seriousness of the offence, noting that the drugs supply sentenced for had continued for about 18 months and was likely to have resulted in significant profit, between the sums of £75,000- £150,000.

Thus, on the basis of the gravity attaching to the offence alone, the Court concluded that the case was of ‘considerable seriousness’ and could only be dealt with by way of an immediate custodial sentence.

Commentary

This is a concerning judgment for a number of reasons.

First, despite the main point to be determined on appeal being whether the sentence should have been suspended or not, the Court failed to engage with any of the applicable law or guidance on whether a sentence should be suspended.

Instead, the Court almost solely focussed on the seriousness of the offence. There is no assessment of any strong personal mitigation, prospects of rehabilitation (despite the mention of a ‘very positive’ pre-sentence report), any adverse impact of custody on others, the offender’s amenability to following court orders, or any danger – or lack thereof – presented to the public as a result of release (Blackstone’s 2019, E6.3).

Secondly, and relatedly, the Court does not engage with any of the applicable case law and/ or guidance on sentencing youth offenders. For example, at a minimum, it is crucial that when sentencing young people, sentences should be individualistic, as opposed to offence focussed; aimed at re-integration into society; and bearing in mind that there is likely to be immense benefit from providing a further opportunity to those with a developing maturity (Sentencing Children and Young People – Overarching Principles, paras. 1.2- 1.7).

Indeed, the Court’s judgment here is inconsistent with the approach taken in Houckham [2009] EWCA Crim 717, where the Court of Appeal quashed a sentence of two years’ imprisonment for an offence of PWITS Class A concerning an 18-year-old defendant, and replaced it with a sentence of 12 months’ custody suspended for two years. The Court’s approach here focussed on the defendant’s youth and capacity for rehabilitation.

It is further inconsistent with the Court’s approach in Cheeseman [2017] EWCA Crim 1561, where the Court of Appeal quashed an immediate custodial sentence for an 18-year-old, who was 17 at the time of the offence, and replaced it with a sentence of 9 months’ custody, suspended for 12 months. Again, the Court paid due regard to the age and capacity for rehabilitation in the young person, as well as other contextual factors.

There have also been a legacy of Court of Appeal judgments such as Hobbs [2018] EWCA Crim 1003 and R v Clarke, Andrews and Thompson [2018] EWCA Crim 185 which have emphasised that the youth and maturity of offenders is a potent factor to consider when sentencing. Yet in this matter, such potent considerations are barely reflected upon. The Court instead favours – regrettably – an unsophisticated, nine-paragraph half-analysis which simply repeats the gravity of the offence as justification for a severe, life-changing sentence for a young person.

Thirdly, and perhaps of most concern, is that this judgment is dealing with a self-acknowledged case of county lines dealing but then fails to consider any of the implications of a child having been involved in such criminality.

For example, both the National Crime Agency (‘NCA’) and the Home Office have recognised that the county lines ‘criminal business model’ thrives on the use and exploitation of children to move and deliver drugs (NCA, Intelligence Assessment: County Lines Drug Supply, Vulnerability and Harm 2018; Home Office, Criminal Exploitation of children and vulnerable adults 2018). Such is the level of vulnerability of those involved, that the National Referral Mechanism (‘NRM’) has often found children involved in county lines dealing to in fact be victims of human trafficking.

The NCA and Home Office emphasise that children are often targeted, recruited, and exploited by those in charge of county lines operations to minimise risk to themselves. Those in charge will often operate from major cities, and direct children and other vulnerable individuals to carry out certain functions within the ‘county’ towns.

It is then within this context that the Court of Appeal has rubber-stamped a dubious finding that a 15- 16 year old occupied a ‘significant’ role within the adult guidelines; failed to properly consider any of the factors for suspending a sentence or on sentencing young people; and somehow reflected the profits being made by those most in charge of the operation to aggravate the involvement of an exploited – even if merely by reason of his age – young person.

This judgment shows the worst of sentencing young people: an unforgiving and short-sighted elevation of the generic ‘seriousness of the offence’ over contextual factors crucial to sentencing in general, but particularly for the youngest members of society who may have been exploited.

RABAH KHERBANE

2 BEDFORD ROW