Clarke, Andrews & Thompson [2018] EWCA Crim 185

R v Morgan Clarke, Declan Andrews and Anton Craig Thompson [2018] EWCA Crim 185 concerned Attorney General’s References by the Attorney General under section 36 of the Criminal Justice Act 1988 and an application for leave to appeal sentence by Andrews; the Court of Appeal, presided over by the Lord Chief Justice of England and Wales (Lord Burnett of Maldon), refused both applications.

All three offenders were sentenced by Her Honour Judge Goddard QC on 23rd October 2017 in the Crown Court at Manchester after pleading guilty to kidnap and blackmail. Clarke received seven years’ detention, comprising four years eight months for kidnap, with concurrent and consecutive sentences for other offences including attempted robbery. Thompson received seven years’ detention, comprising four years eight months for kidnap, with a consecutive sentence of two years four months for perverting the course of justice. Andrews received five years six months’ detention, comprising three years one month for kidnap and two years five months consecutive for perverting the course of justice. All three received full one-third credit for their guilty pleas.

The kidnap and blackmail occurred on 21st January 2017 when all three offenders intercepted sixteen year old Carl Cain outside a takeaway shop. They demanded that his brother Connor, who had recently received several thousand pounds in compensation from a road traffic accident, come to meet them. When Carl said this was not possible, Thompson ordered him to accompany them. Carl attempted to escape by cycling away but the offenders dragged him from his bicycle and assaulted him. They took him to a wooded area and telephoned Connor, informing him that Carl had been kidnapped. The offenders misidentified themselves as two men known locally for being particularly violent, causing the family to panic. They demanded a ransom of two thousand pounds and threatened to stab and kill Carl if payment was not made. Thompson placed a knife to Carl’s throat. The family managed to gather one thousand four hundred pounds and the offenders accepted this sum, giving directions for its delivery.

By this time the family had contacted the police. Fearing that the police had been alerted, the offenders moved Carl to a different location in the woods and kept him there overnight. They threatened that if he spoke to the police they would rape him and kill his parents. At first light the police launched a manhunt using a helicopter. Hearing the helicopter, the offenders disposed of a knife and machete, moved Carl back to the original location, ordered him to remove his clothing, tied his hands and feet with his shoelaces and left him. Carl was able to untie himself and ran to a friend’s house. The ordeal lasted approximately twelve hours. The family subsequently felt so unsafe that they temporarily moved to Scotland.

On 4th March 2017, after the Cain family had returned from Scotland, Thompson and Andrews were spotted in the family’s back garden. They smashed a kitchen window. Thompson was wearing an open ski mask and had a machete in one hand and a hammer in the other. Andrews had his hood up. Thompson demanded money and started to ascend the stairs where Mr Cain was waiting with a baseball bat. Mr Cain struck Thompson, forcing him back down the stairs. Both offenders went into the living room, caused damage, and left after stealing two bicycles belonging to Connor. They were charged with aggravated burglary but the Crown accepted pleas to alternative counts including perverting the course of justice, recognising the difficulty in proving the necessary intent for aggravated burglary. The offenders accepted their aim was to discourage the family from giving evidence.

On 19th May 2017, Clarke and another man confronted Mr Arem and his friend Mr Bird, who were in a Mercedes eating pizza. Clarke appeared at the passenger side with a hammer whilst the other man appeared at the driver’s side with an axe. Clarke aimed blows at Mr Bird with the hammer but Mr Bird deflected them. The second man attempted to start the vehicle. Mr Arem ran from the house and Clarke swung the hammer at him. Both men dropped their weapons and fled, stealing a mobile phone from the car. This gave rise to the attempted robbery and offensive weapon charges against Clarke.

At the time of the offending in early 2017, Clarke was eighteen, Thompson was nineteen and Andrews was seventeen. Andrews had no previous convictions. Clarke had fourteen previous convictions from five court appearances and was subject to a youth rehabilitation order at the time of the offending. Thompson had forty-two convictions from twenty-eight previous appearances and was subject to a community order and suspended sentence when he committed these offences. Thompson had also been committed for sentence in respect of handling stolen goods relating to a stolen motorcycle and summary driving matters. The offending had a profound impact on the Cain family. Mrs Cain was treated for anxiety and depression and Carl suffered adverse psychological consequences.

The mitigation advanced on behalf of Clarke focused on his youth, being only a month beyond his eighteenth birthday at the time of the kidnapping, and his immaturity. For Thompson, counsel emphasised his troubled upbringing with virtually no parental boundaries, drug use from the age of eleven or twelve, and the suicide of his father when Thompson was fifteen, followed by the suicide of his sister a few months before this offending. Thompson suffered from epilepsy and depression and had himself attempted suicide, subsequently being referred to psychiatric services. For Andrews, counsel highlighted deeply dysfunctional circumstances including medical intervention from the age of six for behavioural problems, exclusion from school, a recent diagnosis of adult ADHD, and his mother’s suicide in April 2016 when he was sixteen. Andrews had been provisionally diagnosed with post-traumatic stress disorder and was assessed as being at risk of suicide. All three offenders demonstrated remorse.

On behalf of the Attorney General, Mr Jarvis submitted that the sentences were unduly lenient, particularly for the kidnap offence, contending that the starting point should have been in double figures before reduction for youth, other mitigation and guilty pleas. He relied on cases including R v Warren [2016] EWCA Crim 1344, Attorney General’s Reference Nos 102 and 103 of 2014 [2014] EWCA Crim 2922, and Attorney General’s Reference No 92 of 2014 [2014] EWCA Crim 2713. He submitted that Clarke and Thompson should have received significantly higher sentences than Andrews because they were already subject to court orders, that Clarke’s attempted robbery should have attracted a longer consecutive sentence, and that the consecutive sentences for perverting the course of justice for Thompson and Andrews should have been much longer. He contended that the judge should have applied the aggravated burglary guideline to the perverting the course of justice offence, given the factual similarities, and that this should have attracted a starting point of ten years or more. He argued that the guideline was relevant within the meaning of section 125 of the Coroners and Justice Act 2009, which requires courts to follow relevant sentencing guidelines unless contrary to the interests of justice. He submitted that only a very modest reduction for youth and immaturity should have been allowed given the circumstances of the offending.

On behalf of the offenders, counsel submitted that the judge had carefully evaluated all relevant factors and that the sentences could not be stigmatised as unduly lenient, being within the range of sentences appropriate given the circumstances of the offending and these offenders. Miss Duckworth, on behalf of Andrews, submitted that his sentence should have been significantly lower than that imposed on his co-accused to reflect that he was seventeen rather than eighteen or nineteen, and advanced a disparity argument. She also submitted that Andrews had been subject to a curfew which, although not qualifying for statutory reduction, should bear on the totality of sentence.

The court addressed a preliminary issue concerning the relevance of youth and maturity. The Lord Chief Justice held that reaching the age of eighteen does not present a cliff edge for the purposes of sentencing. Full maturity and all the attributes of adulthood are not conferred on young people on their eighteenth birthdays. Experience and scientific research demonstrate that young people continue to mature, albeit at different rates, for some time beyond their eighteenth birthdays. The youth and maturity of an offender remain factors that inform any sentencing decision even if an offender has passed his or her eighteenth birthday. The court noted that the Sentencing Council guideline for sentencing children and young people undoubtedly applied to Andrews, but that the youth and immaturity of Clarke and Thompson were also appropriate factors for the judge to take into account even though both were over eighteen when they offended. The court found it apparent that the judge had done so, not only in the case of Andrews. The court referred to R v Peters [2005] EWCA Crim 605 as an example of the application of this principle.

The court noted that the sentencing hearing commenced on 20th October 2017 and lasted two and three-quarter hours. The judge explored carefully all the circumstances surrounding the offending together with the mitigation available, including pre-sentence reports, a detailed psychological report on Andrews, and a letter from Thompson together with one from his girlfriend. The judge reflected over the weekend and sentenced the offenders on the Monday afternoon. The starting points implicit in the overall sentences before discount for guilty pleas, but after taking account of all other mitigation, were ten and a half years’ detention for Clarke, ten and a half years’ detention for Thompson, and eight years and three months’ detention for Andrews. The court observed that although the judge did not indicate where she had started before taking account of mitigation including youth and immaturity, it was apparent that were these offenders mature adults they would have received sentences which would have been very much longer.

The court considered the submission that the aggravated burglary guideline should have been applied to the perverting the course of justice offence. The court held that section 125 of the Coroners and Justice Act 2009 did not impose upon a judge a statutory duty to have regard to any definitive guideline from the Sentencing Council which might be useful in helping to determine the appropriate sentence for an offence for which no guideline exists. The word relevant in the statutory context is to be read as referring to a guideline that applies to the offence or to the circumstances of the offender. The court did not accept that a judge has a duty to consider guidelines to help with range finding in a case for which no guideline exists. That said, the court noted that the judge plainly had in mind that the offending shared many of the indicia of aggravated burglary and she took that into account.

The court rejected the submission that any notional reduction in the sentences to reflect the youth of Andrews or the relative youth of Clarke and Thompson should have been minimal. The court emphasised that youth and immaturity may be potent factors in determining the eventual sentence. It was clear from the totality of the hearing and the sentencing remarks that the experienced judge was sensitive to the questions of youth and immaturity. The court held that the underlying question was whether the sentences fell outside the range of sentences which the judge, applying her mind to all relevant factors, could reasonably consider appropriate, referring to the test articulated by Lord Lane CJ in Attorney General’s Reference No 4 of 1989 (1989) 11 Cr App R(S) 517 at 521. Whilst recognising that a different judge may have imposed longer sentences given the youth of the offenders and the mitigation available to them, the court did not consider that the sentences could be viewed as unduly lenient by reference to that test. The court accordingly refused the Attorney General leave to refer the sentences.

The court also rejected Andrews’ application for leave to appeal against sentence on the ground that it was manifestly excessive. The court accepted that a different judge might have drawn a greater distinction between Andrews and the other two offenders, but it was unable to accept that there was any objectionable disparity. The court also did not consider that the point advanced regarding the non-qualifying curfew assisted Andrews. The court refused him leave to appeal against sentence.

In short, the Court of Appeal refused both the Attorney General’s application for leave to refer the sentences as unduly lenient and Andrews’ application for leave to appeal, holding that whilst the sentences were towards the lower end of the appropriate range, they were not outside it given the youth and immaturity of the offenders and the careful evaluation of all relevant factors by the sentencing judge.

Peters & Ors [2005] EWCA Crim 605
Warren, Williamson and Croxall [2016] EWCA Crim 1344
Attorney General’s Reference No 102 and 103 of 2014 [2014] EWCA Crim 2922
Attorney General’s Reference No 92 of 2014 [2014] EWCA Crim 2713
Attorney General’s Reference No 4 of 1989 (1989) 11 Cr App R(S) 517
Karolia & Others [2021] EWCA Crim 1839

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