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Court of Appeal judgment on sentencing children using adult guidelines

R v D [2019] 10 WLUK 433

The Court of Appeal clarified the correct approach to calculating a custodial sentence when sentencing children and young people, where regard is to be had to adult sentencing guidelines.

A court must first determine the appropriate, final sentence that an adult would have received, taking into account aggravating and mitigating factors, in addition to credit for a guilty plea. It is only after this exercise is complete that the court should apply the further reduction in sentence based on the offender’s age, as required by the youth sentencing guidelines. This is ordinarily between half to two thirds for those aged 15- 17.

Details

In this case, the sentencing Judge imposed custodial sentences on two 15-year-olds for a serious robbery which involved the use of weapons. The first young person, D, received a sentence of four years and fourth months’ detention following guilty pleas to attempted robbery and wounding with intent, which involved the use of a knife against the victim’s back. S, the second offender, received three years and eight months’ detention following a guilty plea to attempted robbery where he had chased the same victim with a chisel.

The sentencing Judge correctly considered the relevant sentencing guidelines, and after resolving that only a custodial sentence would be appropriate for these offences, applied the provision within the youth sentencing guidelines that such ‘a sentence should be half to two-thirds of the appropriate adult sentence.’

In doing so, the sentencing Judge adopted the approach of – first – identifying the starting point of the respective offence on the adult guidelines, and then applying a youth reduction of 50% to that starting point. Following this, the sentencing Judge adjusted the sentence for aggravating and mitigating factors, as well as credit for guilty plea, to reach the final sentence(s) imposed.

The Court of Appeal did not criticise the starting points adopted, but agreed with the Appellants that the ‘youth reduction’ had been applied at the wrong stage. Thus, the adult starting point identified should have been adjusted for aggravating and mitigating factors, as well as credit for Guilty plea, before the youth reduction was applied. This would allow the youth reduction to be applied to the precise notional sentence that would have been imposed on an adult for the same offence, which is the noted aim of the youth sentencing guidelines.

On the application of this principle to the Appellants’ cases, this did not make a difference to the sentence imposed on D, but resulted in a slight downward adjustment to the sentence of S.

Commentary

This case clarifies an important exercise in calculating youth sentences when using adult guidelines, and will allow increased consistency in sentencing youths as such.

A potential difficulty arises however, in that certain aspects or types of mitigation will only apply to children, but not adults.

Therefore, if the point at which mitigating factors are considered in this exercise is during the calculation of a notional adult sentence, the difficulty arises as to whether mitigation that is unique to children can be factored into this notional sentence. Alternatively, such mitigation may be more appropriately considered after the application of the youth reduction.

Lastly, it is important to recall that although the ‘youth reduction’ is usually between the region of half to two thirds, the youth guidelines allow ‘a greater reduction for those aged under 15’, and regard should be had to ‘the emotional and developmental age and maturity of the child or young person’ when determining the level of reduction to be applied (para. 6.46 of the youth sentencing guidelines).

Indeed, as is often the case with youth matters, the individual factors relating to the child  are of the greatest importance and may present good reason to impose a reduction outside of the ordinary range (para. 6.47).

Rabah Kherbane, 2 Bedford Row.