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Court of Appeal case: Sentencing may be complex but the core principles of youth justice are not

R v M [2021] EWCA Crim 70

This case involved 3 Appellants; aged between 17 years and 4 months to 18 years at the time of the offences (a series of aggravated robberies). The Recorder applied a starting point before discount for guilty plea of 12 years for all offences and said that the Sentencing Council’s Guideline for Sentencing Children and Young People: Overarching Principles (Overarching Principles) did not apply as all three had turned 18.

All three Appellant’s argued this was too long and indicated that a much higher actual starting point had effectively been applied prior to any considerations on the basis of youth, mental disorder, and personal background respectively given that all 3 were of good character.

The appeal was allowed and the sentences reduced. In respect of M the Court of Appeal noted that the Recorder ought to have sentenced him based on his age at the time of the offending as he was legally a child at the time (17 years and 4 months).

Details

All appellants were of previous good character, entitled to discount for youth and had shown remorse and other features of personal mitigation. One appellant M (facing 8 counts on the indictment) was between 17 years and 4 months and 17 years and 6 months at the time of the offences. He argued that the Recorder wrongly failed to take account of his youth. He relied on the decision of R v G [2002] EWCA Crim 1857; [2003] 1 Cr App R 84 and argued that the Recorder ought to have sentenced him at the age he was at the time of the offending. The other two were 18 at the time of offending.

The Recorder stated that the Overarching Principles and the Sentencing Council’s guideline for dealing with robberies committed by young persons who are under 18 were not relevant at the time of the finding of guilt as they were all now above that age (ie 18). However, he did state that the sentences were “less heavy than they would have been” if each of the Appellants had been somewhat older. The Recorder said that he took 12 years’ custody as the correct “starting point” for the offences for all three defendants. He thought that the aggravating and mitigating features balanced out, and a reduction for the guilty plea led to concurrent terms of eight years’ custody on counts 4, 6 and 8, with shorter, concurrent sentences on the other counts (1, 2 and 3).

The Recorder stated that he would adopt a starting point outside the range that the Guidelines proposed because of the multiplicity of offences. The Court of Appeal accepted this approach as consistent with the Sentencing Guidelines which give the starting point for a single offence. It was the Recorder’s approach to the principle of totality which the Court of Appeal then examined.

The Court of Appeal noted that it was difficult to determine the way in which the Recorder had used the term “starting point” and so calculated its own starting point based on the Sentencing Guidelines. It found that for an adult, for all of these offences of robbery, committed over a period of time on a number of different occasions, a sentence of 14 years’ custody would have been appropriate taking into account the aggravating factors and totality.

The Court of Appeal then considered the individual mitigation available to each appellant.

In respect of M they had regard to the following considerations:

  • He was 17 at the time of the offending;
  • The Sentencing Council’s Guideline for Sentencing Children and Young People: Overarching Principles suggests a discount of between one half to two thirds for offenders aged 15 to 17;
  • The starting point should be the sentence that the offender would have received at the time when the offence was committed. R v G [2002] EWCA Crim 1857 [2055] 1 G App R (S) 84 at paragraphs 31 and 32;
  • M’s previous good character, his remorse, his youth, and the fact that he broke ranks with his plea.

Considering the above, the Court of Appeal applied a discount to the sentence of 14 years to bring the sentence down to 9 years and 4 months custody. The Court then applied full discount for the guilty plea, which resulted in a sentence of 6 years and 3 months’ detention in a young offender institution (in lieu of 8 years).

In respect of L and H who were 18 at the time of the offending but also argued their youth had not been properly considered by the Recorder, the Court reduced their sentences to 7 years and 6 months and 10 years and 3 months respectively taking into consideration youth, mental disorder, family background and good character.

Commentary

It is well documented that sentencing is complex and highly fact dependent. Indeed the Sentencing Code was recently introduced in an attempt to address some of the reasons for this complexity. It is difficult to fully understand the reasoning of the Recorder in this case as we do not have details of what was meant by the 12 year starting point and/or what led to a finding of such a high sentence. However, there are core principles of youth justice which are not complex and which ought to be applied to children and young people in all cases and which were clearly not applied to these three young people until appeal.

These are worth repeating:

  1. The starting point is the sentence that would have been passed at the date of the commission of the offence (R v G [2002] EWCA Crim 1857);
  2. The Overarching Principles continue to be relevant to sentence when a child turns 18 before sentence (R v Hobbs [2018] EWCA Crim 1003);
  3. “Reaching the age of 18 has many legal consequences, but it does not present a cliff edge for the purposes of sentencing. So much has long been clear” (R v Clarke [2018] EWCA Crim 185).
  4. The Overarching Principles do apply to “young people” – ie children who have recently turned 18 and become adults in the eyes of the law. There is now a plethora of case law which attempts to ease the transition to adulthood when it comes to sentencing and avoid the metaphorical ‘cliff edge’ of turning 18.

Written by Aine Kervick, Associate, Kingsley Napley LLP