Sentencing – Beware the Cliff Edge
Ellis Thomas pleaded guilty to a relatively minor public order offence and was sentenced to a community penalty. This penalty becomes the subject of Court of Appeal proceedings due to the following set of facts:
“It was imposed on the appellant in the Crown Court not long after his 18th birthday for an offence committed when he was still 17. Several co-accused, who were also under 18, were remitted for sentence to the Youth Court and were subsequently made the subject of referral orders. Had the appellant been dealt with before his 18th birthday, he would, in all likelihood, have been remitted to the Youth Court as well and dealt with in the same way.”
A referral order was not available to Thomas as his case could not be remitted to the Youth Court due to him being 18 years of age, it was therefore contended on his behalf that the combination of his slightly older age and the timing of the court hearings has resulted in an unfair disparity between his sentence and the disposal of the cases of his co-accused, a disparity which should be corrected.
What did the court say?
The Sentencing Council Guideline recognises, at paragraph 6.1, that there will be occasions when an increase in the age of the child or young person will result in the maximum sentence on the date of the finding of guilt being greater than that available on the date on which the offence was committed (primarily, turning 12, 15 or 18 years of age). The guideline suggests, at paragraph 6.2, that in such situations the court should take as its starting point the sentence likely to have been imposed on the date on which the offence was committed. This includes young people who attain the age of 18 between the commission of the offence and the finding of guilt for the offence, although when this occurs the purpose of sentencing adult offenders has to be taken into account, namely, the punishment of offenders, the reduction of crime (including its reduction by deterrence), the reform and rehabilitation of offenders, the protection of the public, and the making of reparation by offenders to persons affected by the offences.
Although the present situation does not fall four-square within that paragraph, the message is that the court should take as its starting point a sentence equivalent to that which the appellant would have received at the time the offence was committed. The fact that the appellant was the oldest of all the defendants (albeit only by three months) provided some justification for a somewhat more severe sentence than those imposed upon his co-accused. He should have known better. Had he been three months younger, and thus young enough to be remitted to the Youth Court along with the others, his referral order could well have been longer than the three month order for the others charged with the section 4 offence, because he was older. However, the difference in age which led to his being sentenced as an adult was not so great as to justify the discrepancy which has resulted in the unusual circumstances of this case.
Looking at the matter in terms of disparity, the question is whether a right-thinking member of the public would consider that something had gone wrong with the administration of justice when this appellant received a substantial community sentence with significant requirements attached to it, yet his co-accused received shorter and less onerous referral orders instead, including, in particular, a defendant who was only three months younger and who had pleaded guilty to the much more serious offence of inflicting grievous bodily harm.
That said, the real problem in this case arises simply from the accident of the appellant’s age and the timing of the relevant court appearances, which has resulted in the cliff edge of an adult sentence at the age of 18.
The final result was:
“Looking at the matter broadly, it seems to us that the appellant has already performed and achieved much of what would have been involved in a referral order, had it been available. We think that in these circumstances, in order to achieve some degree of parity and fairness between the defendants, it is appropriate that we should reduce the length of the community order and the extent of the requirements. We shall reduce the length of the community order from 18 months to nine months and substitute a rehabilitation activity requirement of ten days, rather than 20 days. We quash the attendance centre requirement. This should mean that the appellant will continue to benefit from the advice and support of his probation officer for another three months, whilst completing the valuable rehabilitation activity requirement. The community order will then come to an end.”
While the Court of Appeal mitigated some of the disparity, in this case, it was not removed entirely. This case illustrates well the considerable complexities of sentencing that cannot always be eradicated, even on appeal. All of solicitors are aware of these issues and work proactively at first instance, and if necessary on appeal, to ensure that fair sentences are imposed.
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