A [2019] EWCA Crim 1279

A [2019] EWCA Crim 1279 concerned an appeal by a 17-year-old male against a sentence of three years and four months’ detention imposed for robbery and related offences, which the Court of Appeal (Lord Justice Irwin, Mr Justice Kerr and His Honour Judge Patrick Field QC) allowed in part, reducing the sentence to 32 months’ detention.

On 22 February 2019 the appellant pleaded guilty at Cardiff Crown Court to robbery (count 1), having an article with a blade or point (count 3), and two counts of attempted robbery (counts 4 and 7). On 18 March 2019 he was sentenced by the judge to three years and four months’ detention pursuant to section 91 of the Powers of Criminal Courts (Sentencing) Act 2000 on count 1, with no separate penalties on the other counts. A count of possessing an offensive weapon was ordered to lie on the file. The appellant’s co-accused, Jamie Davies, who was about a year older and had previous convictions, was sentenced to four years’ detention on concurrent counts including additional offences not faced by the appellant, comprising dangerous driving and driving whilst disqualified.

All offences occurred on 21 January 2019. At approximately 6.00 a.m. the appellant and Davies approached Mrs Janet Caffrey as she sat in her car outside her home in Pontycymer. Davies opened the driver’s door, held a knife within a centimetre or two of Mrs Caffrey’s chest and told her to get out. Simultaneously the appellant opened the passenger door, removed her handbag and mobile phone and threw them onto the pavement before getting into the passenger seat. Davies then drove off at speed in the stolen car, colliding with another vehicle belonging to Mrs Caffrey’s daughter.

At about 9.05 a.m. Mr James Hurley was overtaken at speed by the stolen Hyundai driven by Davies. It stopped immediately in front of him, causing him to halt. The appellant got out, leaned into the back of the car, put on a ski mask, and approached Mr Hurley’s car while apparently armed. Mr Hurley reversed and drove around the Hyundai to escape. A few moments later, at 9.15 a.m., Ms Kayleigh Soper was sitting in her car outside a school making a telephone call with her six-month-old daughter asleep in the back. The appellant and Davies, both wearing balaclavas and bandannas, approached her vehicle, one on each side, and attempted to open the centrally locked doors. One of them pulled hard on the driver’s door handle and pointed a knife similar to a steak knife at Ms Soper through the closed window. She screamed and was frightened for herself and her child. When the youths realised the doors were locked they walked away.

At about 10.40 a.m. DC Cole, driving an unmarked police vehicle, encountered the stolen Hyundai and pulled alongside in traffic. He saw Davies driving and the appellant in the front passenger seat. DC Cole instructed Davies to pull over. Davies got out but then jumped back into the driver’s seat and reversed at speed, colliding with the unmarked police vehicle. DC Cole had to move out of the way to avoid being hit. Davies manoeuvred the stolen vehicle between the police car and a goods vehicle, drove along the pavement, collided with a wall and several other vehicles, and came to a halt after colliding with a lamppost. The appellant and Davies got out and tried to escape on foot.

Davies was detained after a violent struggle by police officers and members of the public. He was found in possession of two screwdrivers and a small amount of cannabis and cannabis grinders. A large black-handled kitchen knife was found on the pavement beneath the passenger door of the Hyundai. Another member of the public, Mr Callum Burrows, seized the appellant. The appellant struggled, and when DC Cole warned Mr Burrows that the appellant might have a knife, the appellant produced a knife some six to eight inches in length and started swinging it towards Mr Burrows. Mr Burrows felt a pain in his side and thought he had been stabbed. He released his grip and the appellant ran away. Mr Burrows then pursued him down a railway embankment onto a track, told him to stop, put the knife down and lie on the ground, and the appellant complied. He remained there until an off-duty police officer arrived to arrest him.

In interview the appellant admitted his presence at all four incidents and said that both he and Davies were in possession of knives which they had taken out that night. He said he had taken Xanax and smoked tobacco through a bong the night before, though the pre-sentence report indicated he had consumed a wider cocktail of drugs before setting out.

The appellant, born on 28 August 2001, was 17 years old at the time of sentence. He had shown challenging behaviour since the age of seven and had been diagnosed with Attention Deficit Hyperactivity Disorder. This condition was not well managed because he was not taking his prescribed medication at the time of the offences. A speech and language therapist found his language skills to be in the low to average range for his age, which could lead to frustration and vulnerability. The pre-sentence report assessed him as posing a high risk of reoffending and a very high risk of causing serious harm. He lacked remorse and empathy for his victims. He had no previous convictions.

The judge applied the Definitive Guideline on Robbery Offences, the Overarching Guideline on Sentencing Children and Young People, and the Guideline on Totality. She found high culpability on count 1 because of the use of a knife to threaten violence and category 2 harm, giving a starting point for an adult of five years’ custody with a range of four to eight years. Aggravating features included the robbery occurring during darkness outside Mrs Caffrey’s house, the presence of a baby in the car during the second attempted robbery, the fact that the appellant and Davies were acting together as a group, both were under the influence of drugs, and the two associated offences which aggravated the sentence in accordance with the principle of totality. Mitigating features included the appellant’s youth, his remorse (notwithstanding the pre-sentence report), references provided, and the fact he had no previous convictions.

The judge concluded that the sentence on count 1 for Davies before credit for plea should be six years’ detention, reduced to four years with credit. When sentencing the appellant she stated that had he been convicted after trial as an adult he too would have faced six years’ imprisonment, but she reduced that to five years to reflect his youth, stating that he was 17½ years old at the time of the offences, not much younger than his co-accused and not very far off being 18. She then allowed one-third credit for guilty pleas, arriving at three years and four months’ detention under section 91.

A pre-sentence appeal report showed the appellant had made progress in custody. He had shown great remorse, produced a letter of apology to one victim, and requested to meet another should that person be willing. He was now aware of the impact of his offending on victims and the wider community and was working well with prison services.

The grounds of appeal were that the judge failed to give appropriate weight to the appellant’s youth and lack of previous convictions, rendering the sentence manifestly excessive. It was not suggested that the judge was wrong to pass an immediate custodial sentence under section 91. Mr Rutter appeared on behalf of the appellant.

The Court of Appeal held that the judge had erred. She had equated the appellant’s position with that of his co-accused save for a discount for age. However, Davies had previous convictions and had committed the offences in breach of a conditional discharge. Furthermore, Davies faced a number of counts not faced by the appellant, so the totality equation would have been different in his case. The court also concluded that the judge failed to have sufficient regard to the appellant’s youth, relative immaturity and mental health problems.

The court referred to paragraph 1.5 of the Guideline on Sentencing Children and Young Persons, which emphasises that children and young people are not fully developed and have not attained full maturity. This can impact on their decision-making and risk-taking behaviour. It is important to consider the extent to which the child or young person has been acting impulsively and whether their conduct has been affected by inexperience, emotional volatility or negative influences. Children and young people may not fully appreciate the effect their actions have on others or be capable of understanding the distress and pain they cause. They are also likely to be susceptible to peer pressure and other external influences, and changes during adolescence can lead to experimentation resulting in criminal behaviour. A child or young person’s emotional and developmental age is of at least equal importance to their chronological age, if not greater.

The court also referred to paragraph 6.46 of the same guideline, which provides that 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, and allow a greater reduction for those under 15. This is only a rough guide and must not be applied mechanistically. In most cases the emotional and developmental age and maturity of the child or young person is of at least equal importance as their chronological age.

The court also noted the conclusion of the pre-sentence report that the appellant acted impulsively, in addition to the other matters already referred to. Notwithstanding these factors, the judge had allowed a reduction of just one-sixth on a sentence of six years’ duration in respect of the appellant’s youth. The court took the view that a greater reduction was justified, albeit not to the full extent envisaged in paragraph 6.46 of the guideline. It followed that the overall sentence of three years and four months was manifestly excessive for the reasons given.

The court emphasised that this was nevertheless serious offending for which a substantial custodial sentence was warranted. It concluded that an appropriate sentence before credit for plea, taking into account the mitigating features and the appellant’s age, was one of four years’ detention. Reduced by one-third to reflect his guilty pleas, this came to 32 months’ detention. The court therefore quashed the sentence on count 1 and substituted a sentence of 32 months’ detention pursuant to section 91 of the Powers of Criminal Courts (Sentencing) Act 2000. The appeal was allowed to that extent. In short, the Court of Appeal reduced the sentence from three years and four months to 32 months on the basis that the sentencing judge had failed to give sufficient weight to the appellant’s youth, lack of maturity, mental health problems and lack of previous convictions.