The Attorney General sought leave to appeal as unduly lenient a sentence of a two year Community Order with a 200 hour unpaid work requirement which was passed by a Crown Court following a young person’s (KM) conviction for an offence of aggravated burglary committed when he was 16. The Court of Appeal granted leave and upheld the appeal, increasing the sentence to one of three and a half years’ detention in a young offender institution.
Details
KM was alleged to have been involved in committing an aggravated burglary on 31 July 2018, when he was 16 years of age. The complainant was at home alone with her young daughter when four men came to her door, one armed with a shotgun, and barged inside assaulting her and demanding money, a Rolex and drugs. One of the men took the complainant’s mobile phone, £85 in cash, a Samsung tablet device and some cigarettes. As soon as they left the complainant called the police. Blood spots on the complainant’s arm were found to be a positive match to KM’s DNA and he was arrested three months later, on 4 November 2018, by which time KM had turned 17. No other individuals were arrested in respect of this offence.
KM was charged with aggravated burglary approximately eight months later, on 5 March 2019, and the case was committed by the Youth Court to the Crown Court. The offender was arraigned a further three months later, on 7 June 2019, and entered a not guilty plea. The trial was placed in the Warned List for the week of 30 September 2019, at which point KM would have still been 17 years old and a child in the eyes of the law, but his case was not listed in that week. KM’s trial was then placed in the Warned List for the week of 20 April 2020. KM remained on bail throughout this period and, in the interim, turned 18.
Although KM had been of good character at the time of the aggravated burglary, shortly afterwards he was convicted of fraud and counterfeit currency offences, and then subsequently convicted for possession of an offensive weapon (a knife). He received a 12 week detention and training order in a young offender institution for the offensive weapon offence. His trial for aggravated burglary was subsequently taken out of the Warned List and fixed for 22 July 2020, almost two years to the day after the date of the alleged offence. At trial the jury rejected the offender’s defence that he had attended the address to buy cannabis, that he had been unaware of the shotgun and that he had left as soon as the males’ intention to steal became apparent. He stated that he had cut his arm at the property and must have brushed past the complainant, which would explain the presence of his DNA on her arm.
In his sentencing remarks the judge stated that this was a case involving greater harm, and that for an adult convicted of involvement by carrying the gun or having inflicted violence, the sentence after trial would have been 13 to 15 years’ imprisonment. However, the judge rejected the prosecution submission that there was higher culpability in the case of this young person – distinguishing his role from those who had engaged in violence or issued threats. The Crown accepted that he was not the male with the firearm. The judge found that this offender had a limited role, and tentatively concluded that he may have been coerced into becoming involved. The judge concluded that KM had lower culpability and played a subordinate role, leading to a starting point of 6 years’ imprisonment with a range of 4 to 9 years’ custody if he had committed the offence as an adult.
The judge then considered the fact that KM was just 16 at the time of the offence, and that the maximum sentence available would have been a 2 year Detention and Training Order, subject to the application of section 91, which was potentially engaged. The judge’s view was that in turning back the clock to look at the position at the time the offence was committed, he could not be satisfied that the test for section 91 was met in that neither a Youth Rehabilitation Order nor a Detention and Training Order was suitable. The judge concluded that in his view a 2 year Detention and Training Order would have been passed by the Youth Court. The judge noted that the substantial delay in sentencing was not all the offender’s fault and, exceptionally, imposed a sentence of a 2 year community order with a requirement to complete 200 hours unpaid work.
The Attorney General submitted that the sentence was unduly lenient for two reasons: firstly that the judge was wrong to conclude this was a lower culpability case, and that secondly, that section 91 would have been engaged, meaning that the maximum sentence would have been life imprisonment in the case of an offender who had committed the offence as an adult. The judge therefore should have made reference to the adult sentencing guideline and then made an appropriate reduction from the sentence to reflect the fact that the offender was 16 years and 9 months at the time of the offence.
The Court of Appeal agreed that this was a higher culpability case, albeit at the lower end of category 1, and also agreed that the judge erred in concluding that a Detention and Training Order would have been suitable if imposed at the time the offence was committed. The Court upheld the appeal, finding that the sentence of a community order was unduly lenient, and substituted a sentence of 3 and half years detention in young offender institution.
Commentary
Whilst the sentencing exercise in this case largely turns on its own facts, the damage caused by substantial delay is all too apparent. In this case, the delay caused the judge to be in the unenviable position of undertaking the hypothetical exercise of considering the arguments which may or may not have been made regarding the engagement of section 91, if they had been required to have been made two years previously. It is not entirely surprising that the Court of Appeal disagreed with the judge’s conclusion, but it is difficult to say with certainty that either were entirely right or wrong. The passage of time makes it impossible to say how a 16 year old of good character would have been viewed in the past, when they are now an 18 year old with convictions and have since served a custodial sentence.
The timeline of events shows that there was delay at every stage of proceedings, only some of which was due the decision to plead not guilty. There must be a greater recognition of the disproportionate prejudice that delay and inefficiency in the criminal justice system causes to young people and steps should be taken to address it as a matter of priority. This case is particularly pertinent and concerning in the context of the Covid 19 pandemic and the ever increasing delays that it has created within the Courts.
Written by
Vivien Cochrane, Senior Associate, Kingsley Napley LLP