McCormick (Adam) v HM Advocate [2016] HCJAC 50
The High Court of Justiciary (Appeal) ruled that a trial judge had imposed an excessive sentence on a child by taking as a starting point the appropriate sentence for equivalent offences committed by an adult and had taken insufficient account of the child’s welfare. Whilst this is a Scottish case, it refers to useful English and Welsh cases restating the principles underpinning the sentencing of children.
Details
AM was convicted of serious sexual offences including rape against two boys aged between the ages of seven and 11 which he committed when he was between 14-15. He appealed, as excessive, the imposition of a six year sentence. The Judge had considered that an adult could receive a sentence of nine years with the sentencing range between eight and 14 years. She then reduced the sentence to take account of his age and immaturity. She also determined that no extended sentence was required.
The Scottish appeal court ruled that although the sentencing range for equivalent offences committed by an adult is an appropriate consideration, there are other more relevant factors that should be considered when sentencing children:
‘[6]Other than to the extent that his youth made him less blameworthy than an adult, it is not clear that the trial judge had in mind any of these important factors – the welfare of the child offender, the need to facilitate rehabilitation and reintegration into society. It does not seem that she considered these factors at all, merely allowing a discount from an appropriate adult sentence to allow for immaturity. In that regard we consider that she erred.’
The sentence of six years detention was quashed and five years detention with three year extension period was substituted.
Commentary
This is a good reminder to practitioners that sentencing youths should always be approached differently from sentencing adults. Practitioners may, however, wish to refer to the case with caution given the appeal courts decision to add a three year extenion period to his sentence. The judgment refers to the case of R(Smith) v Secretary of State for the Home Department [2005] UKHL 51 in which Lady Hale addressed the reasons for treating juveniles differently from adults:
‘25 These considerations are relevant to the retributive and deterrent aspects of sentencing, in that they indicate that the great majority of juveniles are less blameworthy and more worthy of forgiveness than adult offenders. But they also show that an important aim, some would think the most important aim, of any sentence imposed should be to promote the process of maturation, the development of a sense of responsibility, and the growth of a healthy adult personality and identity. That is no doubt why the Children and Young Persons Act 1933, in section 44(1) , required, and still requires, every court dealing with any juvenile offender to have regard to his or her welfare. It is important to the welfare of any young person that his need to develop into fully functioning, law abiding and responsible member of society is properly met. But that is also important for the community as a whole, for the community will pay the price, either of indefinite detention or of further offending, if it is not done.’
The best interests of the child should always be a primary consideration.