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Young age strong mitigating factor in sentencing

R v Finnerty (Daniel Mark) [2016] EWCA Crim 1513

The Court of Appeal quashed an extended sentence given to a 16-year old. He had previously undiagnosed ADHD, dyslexia and dyspraxia. In the court’s judgment, it considered that the appellant’s young age was of particular importance when it came to sentencing. This reaffirms the principle in the Overarching Principles – Sentencing Youths1 that generally a child should be dealt less harshly than an adult offender.

Details

The appellant in this case was originally sentenced by Winchester Crown Court. The sentence consisted of one year in custody for simple arson (count one) and a concurrent term of four years in custody for arson reckless as to whether life was endangered (count two) with an extension period of three years making a total concurrent extended determinate term of seven years for count two. He had committed arson on two occasions, on 22nd and 23rd June 2015 – on the latter occasion he was reckless as to whether life was endangered.

The Court of Appeal quashed the extended sentence and substituted it for a term of three and a half years giving him full credit for his guilty plea.

The appellant was 16 at the time of the offences and pleaded guilty at the first reasonable opportunity. He had been on remand in custody for several months prior to his sentencing hearing, during which time the Court of Appeal noted that he had been provided with structure and support which had previously been lacking and his dyslexia and dyspraxia had been diagnosed and, perhaps for the first time, he was achieving educationally. He had shown genuine remorse for his behaviour.

The Court of Appeal gave two reasons for quashing the extended sentence. The first is that the conclusion by the trial judge that the appellant presented a significant risk of future harm was not justified and therefore the Judge was not entitled to pass an extended sentence. The second reason was that considering the aggravating and mitigating factors, the Judge was not entitled to regard these as offences which justified a sentence of six years after trial or four years after credit for a guilty plea.

In order to impose an extended sentence, one of the conditions is that the current offence justifies an appropriate custodial term of at least four years.

There were also several mitigating factors, which included his undiagnosed ADHD and the unplanned and spontaneous nature of the offences. The court regarded the appellant’s age as of particular importance. Mr Justice Nicol giving the judgment of the court stated:

“The Appellant’s age – 16 at the time of the offences, 17 when he came to be sentenced – is of particular importance. It affects the Court’s approach to the different objectives of the sentencing process and the greater focus that has to be given to signs that the offences were affected by immaturity.” [paragraph 46]

Commentary

This case is useful as it highlights the appeallant’s young age as a critical factor when determining whether to impose an extended sentence. Children’s and young adults’ immaturity and brain development was highlighted in a recent Justice Committee report on young adults in the criminal justice system. Read our legal update on child and adolescent brain development and its impact on propensity to criminal behaviour.

Practitioners should also be aware that the Sentencing Council has published new draft guidelines for the sentencing of young people: Draft Overarching Principles: Sentencing Youths. The principle that a young person will be dealt with less severely than an adult can be found at paragraph 4.4. The justification for the principle is that “young people are unlikely to have the same experience and capacity as an adult to understand the effect of their actions on other people or to appreciate the pain and distress caused and because a young person may be less able to resist temptation, especially where peer pressure is exerted.” This is especially so if the young person has undiagnosed ADHD or autism spectrum disorder, as in this case.

 

By Paul Erdunast (YJLC Legal Researcher)

 

  1. Sentencing Guidelines Council, November 2009, para 3.1  (back)