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Sentencing Guidance: Some clarity on the sequence to be adopted when applying a reduction for a guilty plea and youth when calculating the length of a custodial sentence

 R v RB, 2020 WL 05027403 (2020)

The Court of Appeal held that a sentence of three years and ten months for a robbery in which a knife and an imitation firearm were produced was not manifestly excessive. While the appeal was dismissed, it provided the Court of Appeal with the opportunity to clarify the sequence in which the sentencing judge should apply a reduction in sentence to reflect the offender’s youth and immaturity and any guilty plea.

Details

All three applicants pleaded guilty in the Youth Court to offences of robbery and handling stolen goods, committed when RB was aged 15, JS was aged 15 years and HG was aged 16. The applicants and two others who have not been identified produced a knife and BB Gun during the robbery, with which they threatened the victim.

None of the applicants had any previous convictions. Their representatives accepted that the offence fell into the higher culpability bracket due to the fact that a knife and BB gun had been produced. They contended that the harm suffered by the victim was not serious. Therefore the appropriate starting point would be five years’ custody.

The sentencing judge disagreed with this assessment, placing it in Category 1A with a starting point of eight years’ custody, finding that the complainant had suffered serious psychological harm. Considering the aggravating features of the offences, the sentencing judge found that only a custodial sentence would suffice, and identified the appropriate adult starting point of ten years after a trial. He reduced this to six years and eight months, awarding full credit for their guilty pleas. Then taking into account their youth, a further reduction of about 45% was given, resulting in a custodial sentence of three years and ten months detention.

On appeal it was submitted on behalf of the applicants that the sentencing judge’s notional adult sentence of ten years was too long as he placed too much weight on the aggravating features, in the form of the psychological harm suffered by the victim and insufficient weight on the mitigating features.

The appeal was dismissed. The Court of Appeal found no basis on which to disagree with the sentencing judge’s assessment that the psychological harm was serious in the circumstances. It was accepted that the notional adult starting point was harsh but in no way excessive. The judge, knowing that the sentence would be decreased to reflect the youth of the offenders (as it was, by 45%) was not wrong to increase the starting point to reflect the aggravating features.

Commentary

The Court of Appeal used this appeal as an opportunity to provide some guidance and clarity on the sequence to be adopted when applying a reduction of sentence for a guilty plea and to reflect the youth of the offender in cases where it is clear that a custodial sentence is unavoidable: should the sentencing judge first apply a reduction for an early guilty plea and then consider the youth of the offender or the other way around? This has been hotly debated recently and the clarity provided here is welcome.

The approach taken by the judge sentencing RB, JS and HG is consistent with previous case law (R v D [2019] WLUK 433).

In R v B however, the sentencing judge applied the sequence in reverse when sentencing a 16 year old offender who had pleaded to three robberies and five attempted robberies. He first considered the starting point for this offence for an adult to be eight years, increased to twelve years to take into account the aggravating features of the offence. He then reduced this notional adult starting point to reflect her youth by a third, rather than a half as per the Sentencing Council’s Guideline on Sentencing Children and Young People at paragraph 6.46. This was to further reflect the aggravating features of the offences. He thereafter granted full credit for her early guilty plea. The Court of Appeal held that the sentencing judge had wrongly considered the number of offences as an aggravating feature twice over.

In R v Armsden-McClennan [2019] EWCA Crim 1415 the Court of Appeal found that in first finding the notional starting point for an adult, then applying a reduction for the guilty plea entered on the first day of trial and finally applying a reduction to reflect the offenders’ youth the sentencing judge had arrived at an overly generous reduction in the sentence. The correct approach, it was held, would have been to apply the reduction for their youth first and then any reduction for a guilty plea.

R v RB attempts to lay these inconsistencies to rest. The Court of Appeal held that the correct approach is to first find the notional starting point for an adult offender, taking into account aggravating and mitigating factors save for the offender’s youth. The second step is then to apply the appropriate reduction to reflect the offender’s youth, followed by any discount for a guilty plea.

This sequence has the potential to protect children who may not have had all the information they needed to allow them to enter a guilty plea at the earliest opportunity.  In these circumstances child defendants could be prejudiced if the sentencing judge were to consider the discount for an early guilty plea before that for youth.  However, generally speaking, the sequence of the two reductions is somewhat moot: The significant point is that the adult starting point be established first before moving on to apply both reductions appropriately.

Written by Lady-Gené Waszkewitz, Pupil barrister, 25 Bedford Row