Sentencing of young offenders who turn 18 after commissioning the offence: Rex v GH

Robbery – Sentencing children and young people – Sentencing (

Sentencing Children and Young People – Sentencing (

Sentencing Act 2020 (


Int the recent case of R v GH the Court of Appeal has quashed a detention order made in respect of a Defendant who imposed a Suspended Sentence Order instead.


The appellant and another were accused of repeatedly punching a shopkeeper in the process of stealing sweets and the appellant’s co-accused stabbed the shopkeeper in the leg with a knife. The co-accused was convicted of unlawful wounding and theft and was sentenced to 18 months imprisonment.

The appellant pleaded guilty to the robbery but did not know that the co-accused had been carrying a knife, therefore counts of wounding with intent and unlawful wounding were ordered to lie on the file.

The Judge, HHJ Inyundo, treated the offence as falling into the adult guideline for Street and less sophisticated commercial robbery, starting at 36 months custody and applying reductions for the appellant’s age, other mitigating factors, the guilty plea and time spent by the appellant on a qualifying curfew. Referring to the sentencing guideline Imposition of community and custodial sentences the ruling was immediate custody of 45 weeks detention.

The Judge had been referred to the guideline Robbery - Sentencing Children and Young People, but did not refer to it in his sentencing remarks. The single ground of appeal, made with leave, was that the judge ought to have suspended the sentence.

The Court of Appeal disagreed that the case was one in which the most appropriate punishment was immediate custody and found that the sentence should have been suspended. The Court of Appeal referred to the Sentencing Children and Young People guideline (“SCYP”) and in particular paragraphs 1.5 to 1.8 (which amongst other points refer to the disproportionate impact of penal interventions on a young person’s education and the dangers of alienation from society) as well as 6.1 and 6.2 of that guideline, which provides specifically that where the guilty party turns 18 between the commission of the offence and the guilty finding:

  • the Court’s starting point should be the likely sentence to have been imposed on the date of commission; but
  • (ii) the court must have regard to the adult offender purposes of sentencing, as set out in section 57(2) of the Sentencing Act 2020). There is no corresponding provision as to the purposes of sentencing under 18s.

The Court of Appeal found that on all the evidence the appellant’s sentence should have been suspended by reference to factors including a realistic prospect of rehabilitation, good personal mitigation and a lack of reoffending. The 45-day detention order was substituted for a 45 day detention order suspended for 18 months.


The approach to be adopted where a defendant crosses a relevant age threshold between the date of the commission of the offence and the date of conviction was clearly set out by the Court of Appeal in R v Ghafoor, which is that the starting point is the sentence that the defendant would likely have received at the date of the commission of the office. That approach if he had been sentenced is codified in paragraphs 6.1 and 6.2 of the SCYP. In addition paragraph 6.3 states that when any significant age threshold is passed, it will rarely be appropriate to impose a more severe sentence than the maximum the court could have imposed at the time the office was committed, a general presumption also referred to in the Ghafoor judgment.  For further information on this procedure please see the YJLC Legal Guide on Turning 18 and our update on the new guideline case of R v Ahmed & Ors.

It is not obvious why the Judge at first instance did not follow this approach, despite having been referred to the SCYP at the hearing.

The appellant did not appeal the imposition of a custodial sentence, only that the sentence itself was not suspended. The Judge concluded that an immediate custodial sentence was the only appropriate one, but it is not clear if and what reasons were given for so concluding, given that the sentence clearly was capable of suspension and that none of the factors indicating that it would be inappropriate to suspend the sentence were present. What is apparent is that the Court of Appeal did not agree with the finding that the appropriate punishment could only be achieved by immediate custody. Specifically, the Court of Appeal referred to the use of a knife as being the key aggravating factor, but that the judge at first instance had accepted that the appellant had not known that the co-accused was carrying one. The situation is in contrast to the position in another recent judgment, R. v Schuster (Griffin) (aka McGinley)[1], where an offender being sentenced post turning 18 for an offence commissioned before turning 18 was given a custodial sentence that was not suspended. The Court of Appeal’s reasoning in Schuster was that the appellant had pleaded guilty to offences that included mob intimidation and violence on multiple occasions against people for no reason other than their ethnicity and that consequently it was not appropriate to suspend the sentence.[2]  Therefore demonstrating that such cases will always turn on the particular facts of the case and involve a significant degree of judicial discretion.

Written by Crispin Daly, associate at Paul Hastings LLP.

[1] Case No 202203697/A3 Court of Appeal Criminal Division [2023] EWCA Crim 160, 2023 WL 02574378