Young adults

Significance of age/sentencing powers at time of crime

Ten months before his 18th birthday A., accompanied by other intoxicated young men whom he later referred to as ‘my boys’, broke into a residential garden where a party was just ending, armed with knives and wearing disguise, intent on finding and punishing whoever was believed to have flirted with A.’s girlfriend. Having terrorised and sought to interrogate the remaining guests, who did not seek to fight back or retaliate, they kicked and punched one of the hosts who sustained seven stab wounds once he had fallen to the ground, though it could not be established who had been directly responsible. Other guests were punched and kicked and one was robbed. A. and two accomplices were prosecuted for violent disorder and he was sentenced to four years YOI detention following contested trial, being now aged 18. The judge indicated that proper recognition had been given to A.’s youthful age but identified his high level of culpability in this very violent and totally unprovoked attack while a trespasser on private property, arranged and directed by him, motivated by revenge and his wish to enforce his will on others. He had one previous conviction, for ABH assault, attracting a referral order six months prior to the current crime.

On his appeal against sentence, it was argued that the judge should have taken as the starting point the sentence likely to have been imposed on the date on which the offence was committed, when he was aged 17. At that point, the maximum sentence available to the court would have been a detention and training order of 24 months. The Definitive Guideline on sentencing children and young persons (2017), reflecting past case authority (notably Ghafoor), states:

Where any significant age threshold is passed [between offence and sentence], it will rarely be appropriate that a more severe sentence than the maximum that the court could have imposed at the time the offence was committed should be imposed. However, a sentence at or close to the maximum may be appropriate. (6.3)

R v AMIN, [2020] 1 Cr App R(S) 36.

Diminishing youth discount approaching adulthood

When aged 17 P. was involved in a ‘county lines’ drug supply network, being caught through selling heroin and crack on three occasions to an undercover police officer. When his home was subject to a search warrant he was found in possession of wraps of each drug, total street value of £160, plus £360, drugs paraphernalia, knives, and mobile phones. He was on bail at the time of search for simple possession of cannabis and two driving offences. By now aged 18 he pleaded guilty to Class A supply x 3 and possession of Class A with intent to supply x 2. He told the PSR author that he had acted in this way because he had incurred a debt and was fearful that his drug associate creditors would put pressure or worse on his mother if he did not repay them by working for them. He wanted to live a prosocial life.

The judge at Crown Court identified P. to have played a significant role for the purposes of the relevant Guideline (2012), falling to be dealt with under Category 3, and stated that had he been an adult at the time of his offending, the starting point would have been four-and-a-half years, meriting an uplift to five years to reflect aggravating factors. Though taking into account the maximum sentence he would have received if still aged 17 at the time of conviction and dealt with by a youth court, she opted to deduct 20% to reflect his still youthful age and then a further third to reflect plea, thus imposing a term of 32 months YOI detention. Another offender caught in the same enforcement exercise for similar, though not identical, offences, who remained 17 and was of previous good character, had been sentenced by a youth court to a referral order.

On appeal it was argued that insufficient regard had been had to his age. The Court of Appeal referred to that aspect of the Guideline for sentencing children and young persons (2017) which states:

When considering the relevant adult Guideline, the court may feel it appropriate to apply a sentence broadly within the region of half to two-thirds of the adult sentence for those aged 15 to 17…. This is only a rough guide and must not be applied mechanistically. In most cases when considering the appropriate reduction from the adult sentence, the emotional and developmental age and maturity of the child or young person is of at least equal importance as their chronological age. (6.46)

R v PAYNE, [2020] 1 Cr App R(S) 27.

Drug supply: Meritorious or advantaged defendant?

Having observed M. behaving suspiciously in an area of Medway known for drug dealing, meeting with others briefly in an underpass, police officers searched him and found wraps of heroin and cocaine. On pleading guilty to two counts of Class A possession with intent to supply, he submitted a basis of plea that three months before arrest he had become friendly with other young men in his home area of London (Peckham) and they had shared clothes, food, and drink with him. Having assumed that their apparent generosity was sincere, he had been told that he was expected to do something in return and felt obliged to comply, being driven to Kent and told to follow instructions, thus receiving a package in the underpass which proved to be drugs.

Though the prosecution did not accept the basis of plea, it accepted that it made no difference for sentencing purposes whether M. had been a courier for a whole parcel (his case), or a runner of individual wraps to users (the prosecution case). He came within Category 3 of the Drug crime Guideline (2012), having fulfilled a ‘lesser role, acting under direction’, indicating a starting point of three years’ custody and a range between 24 months and 54 months. Now aged 20 with no criminal history or experience of taking drugs, he was described in the PSR as having grown up in a part of south London where gang violence and drug dealing had been common. Despite low income his mother as single parent had encouraged him to avoid offending and do well at school and he was just completing his first year at university. He was considered an immature, naive individual who would find custody extremely difficult to deal with as it would bring him into contact with more sophisticated offenders. He was assessed to pose a low risk of reoffending and a low risk of harm to the public and could be managed safely in the community.

The judge at Crown Court had not been impressed that despite his `many advantages’ M. had become involved in the drugs trade, observing that for ‘someone in your position, doing what you did is so serious that only’ an immediate custodial sentence could be imposed. Suspension of sentence could be considered in a case like this only in ‘exceptional circumstances’ and ‘could not be contemplated’. From a starting point of two years (after allowance made for age, circumstances, and positive references to the court), with a quarter deducted for plea, a term of 18 months YOI detention resulted.

On appeal the Court of Appeal noted as an aggravating feature that M. had ‘associated himself with an inner city London group who travelled to a smaller town in order to supply drugs’, observing that ‘people involved in the supply of Class A drugs, even in small quantities at the bottom of the supply chain and acting on the instructions of others, will in most cases’ incur immediate custody. However, the judge had erred in his ‘rigid’ view that only an immediate custodial sentence could be passed on people who deal with Class A drugs. The long abolished ‘exceptional circumstances’ threshold test for suspension of imprisonment [within CJA 1991, repealed by CJA 2003] does not remain valid. Had the judge ‘engaged more with the facts of’ M.’s case it ‘would have been appreciated’ that the mitigation arising from being ‘exploited and set up by others’ and his personal circumstances, including his prospects of rehabilitation, justified suspension. ‘This was not the case of a person who had had advantages in life.’ A suspended sentence order (18 months for two years, without conditions) was substituted. [Note: this judgment should be read in tandem with that of Hussain and O’Leary (above, also featuring young adults) and, though the nature of M’s offending was not identical, with that of Payne (above), where the tone adopted presents an interesting contrast of approach.]

R v MANDISHONA, [2020] 1 Cr App R(S) 33.