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The ‘cliff edge’ of turning 18 and disparity of sentences with younger co-defendants

R v T 2020 EWCA Crim 822

The Court examined the circumstances in which the appellant,T, having pleaded guilty to one charge of using threatening words and behaviour contrary to section 4 of the Public Order Act 1986, was sentenced to a Community Order for 18 months with requirements to complete 20 hours of rehabilitation activity and 36 hours attendance at an attendance centre and to pay a Victim Surcharge of £85. T was 17 at the time of committing the offence and turned 18 between committing the offence and pleading guilty. T appealed against his sentence on the basis that his younger co-defendants, having pleaded guilty to the same offence, were remitted to the Youth Court for sentence and were sentenced to Referral Orders of varying lengths. The Court agreed that the resulting disparity was unjust and substituted the sentence with a nine month Community Order with 10 hours Rehabilitation Activity Requirement and a £20 Victim Surcharge.

Details

 T was one of a group of seven defendants who were alleged to have chased, surrounded and assaulted the 19 year old complainant. T was the oldest, 17 and a half at the time of the alleged offence, the next oldest, M-W was three months younger and the youngest in the group was 14 years old. The others were 15 or 16 years old. It was alleged that the 14 year old punched the complainant in the face fracturing his jaw bone and that M-W produced a knife and used it to stab the complainant.

All seven were initially charged with an offence of section 18 causing grievous bodily harm with intent, and in the alternative, inflicting grievous bodily harm contrary to section 20 of the Offences Against the Person Act 1861. They appeared before the Youth Court whilst T was still 17 years old, and the case was sent to the Crown Court for trial. The first hearing at the Crown Court was coincidentally the date of T’s eighteenth birthday, when he entered not guilty pleas to the section 18 and section 20 offences. At a mention hearing two months later the position changed as the Crown accepted pleas of guilty from M-W and the 14 year old co-accused to the section 20 offence, and the four other co-accused including T pleaded guilty to an offence under section 4 of the Public Order Act 1986. All of the defendants save for T were under 18 and so were remitted to the Youth Court for sentence.

As all of the co-accused were of good character, they each received Referral Orders. The two defendants who had pleaded guilty to the section 20 offence received 12 month Referral Orders. The four defendants who, like T, had pleaded guilty to the section 4 offence received three month referral orders. T was sentenced in the Crown Court to a Community Order for 18 months with requirements to complete 20 hours of rehabilitation activity and 36 hours attendance at an attendance centre and to pay a Victim Surcharge of £85.

On appeal it was argued on T’s behalf that his sentence was excessive compared to the sentences imposed on his co-accused. The court noted that the fact that T was the oldest of the defendants justified a more severe sentence as he should have known better, but the difference in age was not so great as to justify the discrepancy which arose in this case.

The test for disparity is whether a right-thinking member of the public would consider that something had gone wrong with the administration of justice when T received a substantial community sentence with significant requirements, yet his co-accused received shorter and less onerous orders (see R v Fawcett (1983) 5 CR App R(S) 158).

The court took the view that T had already performed and achieved much of what would have been involved in a Referral Order, had it been available to him. To achieve parity and fairness, his community order was reduced to nine months, and the rehabilitation activity requirement was reduced to 10 days rather than 20. The attendance centre requirement was quashed, and the victim surcharge of £85 was quashed and replaced with the sum of £20 which was the correct sum given that T was under 18 at the time of the offence.

Commentary

 This case is another stark reminder of the cliff edge in sentencing which can unjustly occur when a defendant turns 18 between the date of the commission of the offence and the date of conviction. The particular facts of this case highlight the disadvantage that a defendant in T’s position faces in a complex multi-handed case, where delays due to prosecution decision making and allocation can have a huge impact on the outcome for any defendant who is nearing their eighteenth birthday.  In this case, had the prosecution accepted a plea from T to any offence, even the more serious charge of affray, at the first appearance in the Youth Court, then he would have been eligible to receive a Referral Order like his co-defendants. Instead, the negotiations which ensued, centring on the culpability of his co-accused, meant that he was not able to enter a plea until after he had turned 18, and therefore fell to be sentenced according to the adult sentencing guidelines, albeit that the starting point should have been the sentence likely to have been imposed on the date the offence was committed.

Whilst the court has taken a pragmatic and sensible approach in attempting to create parity between the requirements of the community order to which T was made subject and the Referral Orders which his co-defendants received, the most significant difference which cannot be remedied is that T will have a conviction on his criminal record which will not be spent until one year after the order is completed, whereas the Referral Orders imposed on his co-accused will be spent as soon as they are completed.

Written by Vivien Cochrane, Senior Associate, Kingsley Napley