R v Sanderson  EWCA Crim 349, 2022 WL 00836416
The Court of Appeal has confirmed that the starting point for sentencing a young person aged 18 convicted of murder is a 25-year minimum term. Notably, Justice William Davis, the judicial lead for youth justice was one of the judges.
At the Crown Court trial, the appellant faced four charges, including principally the charge of murder. Shortly before close of the prosecution case, the appellant changed his plea to guilty in relation to two of these offences, and was convicted by jury for the remaining two charges (including murder).
Since the appellant was aged 18 years and eight months at the date of the murder, the Crown Court considered the provisions of Schedule 21 of the Criminal Justice Act 2003 (CJA), which provides that if the offender was aged 18 or over when the offence was committed, the offence is normally regarded as sufficiently serious for the appropriate starting point in determining the minimum term to be 25 years.
The Crown Court considered that the aggravating factors and mitigating factors present in the offending balanced and accordingly set a 25 year minimum term. The mitigating factors taken into account included the fact that the Defendant was of young age and lacked the insight to fully understand the nature of his conduct and impact on others.
In the appeal the appellant submitted that the courts have long recognised that turning 18 “has many legal consequences, but does not represent a cliff edge for the purposes of sentencing”, and that if the appellant had been only eight or nine months younger at the time of the offence then the starting point in determining minimum sentence prescribed by Schedule 21 of the CJA would be 12 years rather than 25 years. The basis of the appeal of the sentence passed by the Crown Court was therefore that insufficient regard was given to the appellant’s age at the time of the offence.
In making its decision, the Court of Appeal cited the judgment of Macur LJ in Peters, which affirmed that Schedule 21 of the CJA did not operate on a mathematical scale so as to move the starting point for sentencing in proportion to age. Rather, the court is required to begin from the applicable prescribed starting point before applying any discount that is justified in the facts of the case (including any reduction of culpability due to young age).
In applying this principle, the Court of Appeal found that the facts of the case (which included the appellant’s previous offending and his understanding of wrongdoing and criminal intent) did not suggest that his culpability should be particularly diminished by his young age here. Although the Court of Appeal did recognise that a minimum term of 25 years is ‘very substantial’ for an 18-year-old, it found that the sentence imposed by the Crown Court could not be regarded as manifestly excessive, and accordingly dismissed the appeal.
Although the decision of the Court of Appeal in R v Sanderson does not represent any change in legal position, it does highlight again that turning 18 has a significant impact on sentencing principles in the eyes of the court. In particular, turning 18 prior to the commission of an offence immediately increases the starting point for the determining minimum sentence from 12 years to 25 years, and the Court of Appeal reiterated that the law does not give any proportional discount in sentencing for offenders who have only just turned 18. This judgment does however acknowledge that a judge applying the sentencing principles should give due consideration to an offender’s age to the extent that it affects their culpability and the seriousness of the crime.
Practitioners representing young people who have recently turned 18 at the time of the alleged offence should consider this case as a further warning that the courts do not consider young age alone to be a mitigating factor in sentencing. In these cases extra efforts must be made by advocates to demonstrate the immaturity of the young person they represent. Relevant mitigating evidence might include psychological or psychiatric assessments and character references. More generally, advocates should highlight the neuroscientific evidence which suggests that the brain does not typically reach biological maturity until 21 or 22 and previous guidance which suggests that the criminal justice system should presume that young adults up to the age of 25 are typically still maturing.
Written by Bernard Lung, Associate, Paul Hastings (Europe) LLP