AS [2019] EWCA Crim 1458

AS [2019] EWCA Crim 1458 was an appeal by a young offender before Lord Justice Holroyde, Mr Justice Julian Knowles and Sir John Royce against sentences totalling 33 months’ detention imposed under section 91 of the Powers of Criminal Courts (Sentencing) Act 2000. The Court of Appeal allowed the appeal in part and reduced the overall term to 24 months.

AS had pleaded guilty to two counts of kidnapping, one count of robbery and one count of assault occasioning actual bodily harm. He was 13 years and eight months old at the time of the offences. His co-accused BH had pleaded guilty to the same four counts. Three younger co-defendants, SL, DH and JC, pleaded guilty to lesser offences. The victims, JO and RB, were both 11 years old. Orders under section 45 of the Youth Justice and Criminal Evidence Act 1999 prohibited publication of any matter likely to identify the victims or the offenders while under 18.

The offences occurred on a cold afternoon in February 2018. JO and RB went to local shops to buy sweets. AS, BH and SL encountered them and followed them, threatening to strip them and take their belongings unless they came to a field. At the field JO managed to escape and raised the alarm at the shop. RB was taken further across other fields to the area of a lake, a distance taking approximately 20 minutes to walk. Two more boys, DH and JC, joined the group. RB was robbed of his mobile phone and a bag containing three pounds. He was punched and made to fight with SL. He was humiliated in various ways including being forced to do star jumps, eat a biscuit found pressed into mud, and walk with a cone on his head. He was ordered to remove his jacket and jump into the very cold water of the lake. After being allowed out he was made to jump in a second time. RB was terrified and at times feared for his life. The offenders filmed or pretended to film his humiliation on mobile phones. Finally RB was ordered to lie on the ground and wait while the offenders left.

Victim personal statements from RB and JO and adult members of RB’s family gave powerful accounts of fear and distress. Six months later both boys were still suffering significantly. They complained of disturbed sleep, were frightened to leave their homes and felt unable to travel on the school bus. JO had missed schooling because he was afraid to leave the house. RB had missed school and sports activities outside school. His mother had become ill and lost her job, causing financial problems. The family was planning to leave the area in which they had lived all their lives and where they had previously been happily settled. The harm caused by the offences was undoubtedly serious.

The five offenders were sentenced by a Recorder. AS had attended court on the day fixed for sentencing but left the building during the day and was not arrested for some weeks. He admitted a breach of bail. BH was absent from the first sentencing hearing having been arrested the previous day for further offences.

AS had antecedents as a 12 year old showing three offences of battery and one of public disorder, dealt with by referral orders including one of 12 months’ duration. As a 13 year old he committed public disorder and common assault, dealt with by a youth rehabilitation order with supervision for 12 months and a curfew for three months on 3 August 2017. The present offences were committed whilst that order was in place. After the present offences AS received further referral orders for breaches of a criminal behaviour order. When aged 14 he committed theft from the person and battery, again dealt with by referral orders.

A substantial body of reports assisted the court in sentencing AS. Two reports by Dr Deo, a consultant forensic psychiatrist, confirmed that AS suffered from both Attention Deficit Hyperactivity Disorder and Autistic Spectrum Disorder. Dr Deo observed that AS appeared vulnerable and easy to lead. He explained that those suffering with ASD are often easily led and want to please others, especially friends. He assessed that AS was only fit to stand trial with the assistance of an intermediary. Dr Deo observed that now AS’s conditions had been diagnosed he could receive appropriate support and assessed AS as capable of benefiting from therapeutic work. He favoured a non-custodial sentence if the court felt able to take that course.

Testing by the London Borough of Hillingdon in February 2019, when AS was aged 14 years and eight months, showed extremely low scores for general cognitive ability. AS was ranked in the first percentile and some tests produced age-equivalent scores at the level of a nine year old. The report noted that AS had general learning difficulties across all areas and had spent much of his adolescence not accessing education. He was capable of being polite but had a history of challenging behaviour both in and out of an educational setting and was assessed as needing heavy support to integrate back into education.

A pre-sentence report by Ms Baronowski in February 2019 recorded that AS had grown up in an environment where violence was both threatened and used and had been a witness to parental violence. It was a matter of concern that he had shown himself willing to use violence to resolve conflicts. AS’s mother had been extremely young when AS was born, faced a number of problems of her own, and had at times found it difficult to manage his behaviour. His father, also a very young parent and a heroin addict, appeared to have played little part in AS’s life and refused to engage with professionals. Ms Baronowski noted that AS was at that stage unwilling to take prescribed medication because he did not want to be labelled as different. She found that he saw himself as a criminal and tended to gravitate towards peers also involved in criminality. He had ample opportunity to do so because for a significant time he had not been engaging in education. She noticed that a recurrent theme was AS’s misplaced loyalty towards his peer group. She felt that the present offences were opportunistic rather than planned and assessed that AS failed to recognise the full seriousness of his actions or how his actions affected others. She regarded him as a high risk of reoffending, a very high risk of causing serious harm and a high risk to his own safety. He displayed limited remorse and was unable to empathise with others, a troubling feature likely to increase the risk of reoffending. Nevertheless she pointed out that AS was still very young. He was a persistent offender who met the criteria for a youth rehabilitation order with a requirement of intensive supervision and surveillance. Ms Baronowski put forward a detailed programme for such an order and urged it as an appropriate alternative to custody.

In addition the court was provided with letters from members of AS’s family and other adults who knew him well. The authors recognised the seriousness of the offences and the great distress caused to the victims and their families but confirmed that AS was easily led and did not always realise the consequences of his actions.

The Recorder sentenced the offenders on two separate occasions. He drew a clear and correct distinction between AS and BH on the one hand and the remaining three defendants on the other. With careful reference to the sentencing guidelines and the particular circumstances of their cases, the Recorder granted an absolute discharge to SL and made youth rehabilitation orders in relation to DH and JC.

In his sentencing remarks on 1 April 2019 the Recorder confirmed that he would give AS and BH full credit for their guilty pleas. He indicated that AS’s breach of bail would merit a custodial sentence of around two months in the case of an adult offender but rather than impose a separate sentence he imposed no separate penalty and took the breach into account when determining the sentence for the other offences. He referred to the very serious facts of the case and the highly damaging impact of the offences on the victims and their families. He took into account the material before him, particularly noting that AS had a cognitive age significantly below his years but not going into further detail. He assessed BH as having initiated the acts which took place and playing a leading role in the offences. He assessed AS as playing a very significant part in the events, including by preventing RB’s escape, and said that the seriousness of AS’s offending followed only shortly behind that of BH. Although some challenge was made to the finding that AS had tripped RB, thus preventing him from escaping at the same time as JO, the Court of Appeal was satisfied that the Recorder was entitled to make that finding.

The Recorder referred to the Sentencing Council’s Definitive Guideline: Overarching Principles for the Sentencing of Children and Young People, which includes an offence-specific guideline for offences of robbery by young offenders. He concluded that a youth rehabilitation order with intensive supervision and surveillance could not be justified because of the seriousness of the offences, because of AS’s criminal record, and because AS’s commission of subsequent offences showed that a non-custodial sentence was no longer in his best interests. The Recorder imposed sentences of 33 months’ detention under section 91 of the 2000 Act in respect of each of the offences of kidnap and robbery, with no separate penalty for the offence of assault occasioning actual bodily harm. In BH’s case he imposed sentences of detention of 40 months. By an oversight the Recorder omitted to impose the necessary statutory surcharge, an omission the Court of Appeal could only correct if the appeal succeeded and some reduction was made in the overall sentence.

On appeal Mr Butler submitted that the sentence was manifestly excessive. He submitted that the Recorder did not sufficiently have regard to the principles set out in the Guideline and in particular failed to give sufficient weight to the particular vulnerabilities of AS. Emphasising the evidence that AS was easily led and did not always appreciate the seriousness of his conduct, Mr Butler submitted that the Recorder should have given significantly greater weight to those features. He relied in particular on paragraph 1.1 of the Definitive Guideline which stated that when sentencing children or young people a court must have regard to the principal aim of the youth justice system and the welfare of the child or young person. Paragraph 1.2 provided that while seriousness of the offence would be the starting point, the approach to sentencing should be individualistic and focused on the child or young person, as opposed to offence focused, and that for a child or young person the sentence should focus on rehabilitation where possible. Mr Butler also relied on paragraph 1.5 which emphasised the importance of bearing in mind factors which may diminish the culpability of a child. The immaturity of a child or young person can impact on decision making or risk-taking behaviour. Conduct may be affected by inexperience, emotional volatility or negative influences. The paragraph stated that children and young people may not fully appreciate the effect their actions can have on other people and may not be capable of fully understanding the distress and pain they cause to victims. Children and young people are also likely to be susceptible to peer pressure and other external influences and changes taking place during adolescence can lead to experimentation resulting in criminal behaviour. When considering a child or young person’s age their emotional and developmental age is of at least equal importance to their chronological age, if not greater.

Mr Riley assisted the court with a written respondent’s notice and with oral submissions expanding upon that notice.

Further reports had been prepared for the Court of Appeal. A review dated 19 July 2019 from the Secure Unit at which AS was held recorded that his general behaviour had been consistently good during the period of about three and a half months that he had been there. AS had received the odd sanction including two for fighting but the general picture was that he had applied himself well, was enthusiastic about some activities and had a 100 per cent attendance record for his education. The report noted that AS’s mother, who was clearly devoted to him, visited him several times each week. A further pre-sentence report similarly recorded that AS was doing exceptionally well at the Secure Unit, although there was no suggestion that the previous risk assessment had ceased to apply. The author of the report supported the original proposal of a youth rehabilitation order with intensive supervision and surveillance.

The Court of Appeal noted that the Guideline made clear that a custodial sentence must always be a sentence of last resort. The starting point for consideration of the appropriate sentence is the seriousness of the offending, having regard to the culpability of the young offender and the harm caused. But in assessing those factors the need for an individualistic approach requires the court to consider amongst other things the young offender’s awareness of his actions and of the consequences of his actions. The maturity and emotional age of the offender, as well as his chronological age, must be considered. So too must be considered any mental health problems or learning disabilities. In relation to robbery there was a section of the Guideline which dealt with this specifically. More generally, the Overarching Principles section made clear that if custody was unavoidable the court should, as a rough guide, consider what sentence would be imposed on an adult offender. Paragraph 6.46 indicated, again as a rough guide, that an offender aged under 15 should receive a custodial sentence, if one be unavoidable, of less than half the sentence which would be appropriate for an adult offender.

The Recorder was faced with a complex and difficult sentencing process in dealing with all five young offenders and with this appellant in particular. His task was made the more difficult because consideration of the appropriate sentence for an adult offender would have to take into account the additional aggravating feature of the disparity in age between an adult offender and a child victim. The disparity in age in the circumstances of the present case was of course limited to a couple of years. The Recorder approached his difficult task with great care. He clearly had in mind the provisions of the Guideline. True it was that he did not recite every word of the most relevant paragraphs but it was clear, reading the transcripts of the various hearings, that he gave careful consideration to them.

In AS’s case there were undoubtedly a number of factors which pointed towards the making of a youth rehabilitation order rather than a custodial sentence. First, AS had plainly had a difficult and unsettled upbringing in the course of which, sadly, he had become accustomed to violence. His conditions of ADHD and ASD made him easily led and limited his understanding of the effect of his actions on his victims. His overall cognitive limitations meant that he was in many respects functioning at a level significantly below his chronological age.

On the other hand, as the Recorder said, these were serious offences which would have demanded a very substantial sentence if committed by an older offender. None of the reports suggested that AS did not know that what he was doing was seriously wrong. Nor did they suggest that he was wholly unable to appreciate the distress and fear of his 11 year old victim, outnumbered as he was five to one by appreciably bigger boys, or to appreciate the obvious risk of the victim being ordered twice to jump into a lake of very cold water without any enquiry as to whether he could swim. Further, AS’s previous offending had been dealt with by non-custodial orders in the course of which efforts were no doubt made as far as possible to assist AS to avoid further offending.

The Court of Appeal concluded, after careful reflection, that young though AS was, a custodial sentence was unavoidable for the reasons which the Recorder gave. In general the Recorder correctly applied both the general principles in the Guideline and the specific provisions relating to offences of robbery. But with all respect to the Recorder the court concluded that when determining the length of the sentence he did fall into error in his application of the Guideline. First,