Matus Horvath [2019] EWCA Crim 1795

Matus Horvath [2019] EWCA Crim 1795 is a decision of the Court of Appeal (Lord Justice Simon, Mrs Justice McGowan DBE and Mr Justice Freedman) allowing an appeal against a sentence of two years’ detention in a young offender institution for robbery, which was reduced to sixteen months.

On 5 March 2019 in the Crown Court at Maidstone the appellant pleaded guilty to robbery contrary to section 8(1) of the Theft Act 1968. On 28 March 2019 he was sentenced to two years’ detention in a young offender institution. Leave to appeal was granted by the single judge, who also granted a representation order.

On 2 January 2019 the complainant, a 15-year-old boy, was walking home along the High Street in Chatham when the appellant and two others followed and confronted him. He was grabbed, pushed into an alleyway, knocked to the ground, and then hauled up by his rucksack and pinned against a wall. The attackers removed his jacket, searched his rucksack and took a Bluetooth speaker and an iPhone. They demanded the password and the victim, frightened, unlocked the phone by voice recognition. The appellant then took a silver chain from the victim’s neck, a silver bracelet and a silver ring. He produced what the victim believed to be a real knife from his waistband and said “Do you think I’m joking?” The item was later discovered to be a plastic replica, though the sentencing judge described it as very realistic and the victim thought he might be stabbed. The appellant used an earring taken from the complainant’s ear to remove the SIM card from the telephone. All three ran away.

The following day police stopped the appellant. He was carrying in his waistband what was described as an imitation dagger in its sheath and was wearing the victim’s silver chain around his neck. The victim provided a personal statement describing the lasting and profound effect upon both him and his family. His parents expressed feelings of guilt at not being able to protect their son. He became reluctant to leave the house even to meet friends, and for the first month or so after the incident his mother rearranged her life to take him to and collect him from school. He had lost all confidence and was not prepared to travel home alone in the dark. The statement indicated that by the time it was made things had begun to improve.

The appellant was born on 10 January 2001 and turned eighteen seven days after the commission of the offence. Of the other two attackers, one was fifteen at the date of the offence and one was sixteen. In passing sentence, the judge described the shock and loss of confidence suffered by the victim. He distinguished between the appellant and the other two because the appellant was eighteen at the date of sentence and was, the judge said, on the cusp of eighteen at the time he committed the offence. The judge said he would treat the appellant as an adult offender.

The judge rightly described the incident as a joint venture and the use of an imitation weapon to threaten placed the offending in category 2B of the relevant guideline, by agreement of all parties. The judge placed the matter at the bottom of that category range, taking into account all the circumstances, and fixed the starting point at three years. By way of mitigation, the appellant had no previous convictions at the date of the offence. He had been intermittently in employment and bore a large part of the responsibility for providing care for an uncle who was blind. The judge also expressed the view that the appellant had shown genuine remorse. Balancing those factors, the judge concluded that the sentence should be right at the bottom of the range. He took three years as the sentence and reduced that to two years given that the plea was timely.

On appeal, Ms Choudhury contended that the sentence was wrong in law and that the sentencing judge should have imposed a sentence reflecting the sentence that would have been passed if the offender had been sentenced at the date of the offence, when he was still seventeen. The Sentencing Council guideline Sentencing Young Persons indicates that a sentence of two-thirds to one-half of the appropriate adult sentence should be imposed. If the appropriate adult sentence was twenty-four months, as the judge found, the correct sentence adjusting for age was sixteen months. The requirement of a reduction to reflect youth was supported not only by the guideline but by R v Clarke and Ors [2018] EWCA Crim 185, where the Lord Chief Justice said at paragraph 5 that reaching the age of eighteen has many legal consequences but does not present a cliff edge for the purposes of sentencing. Full maturity and all the attributes of adulthood are not magically conferred on young people on their eighteenth birthdays. Experience of life reflected in scientific research is that young people continue to mature, albeit at different rates, for some time beyond their eighteenth birthdays. The youth and maturity of an offender are factors that inform any sentencing decision, even if an offender has passed his or her eighteenth birthday.

The court emphasised that amongst the purposes of sentencing are the punishment of offenders and the protection of the public, but another and equal purpose is to achieve rehabilitation where possible. For a young person of previous good character, with positive aspects to his personality, that was an important aspect of the case. The realistic chance of rehabilitation, given his age and lack of maturity, should have been considered. The court expressed concern that the authority of Clarke, the authority of R v Ghafoor [2002] EWCA Crim 1856 and the principle of sentencing somebody so young were not drawn to the learned judge’s attention. He did not have the assistance of being referred to those matters on behalf of the appellant, nor to the clear principle that an adult sentence should be reduced by virtue of the fact that the offence was committed whilst the appellant was still under eighteen. As the single judge had observed, it was unfortunate that Ghafoor was not drawn to the attention of the judge at the time. The fact that the judge was not, as he should have been, referred to the guideline which specifically deals with the sentencing of young persons and these authorities was highly unfortunate and had led to an appeal which need never have happened.

In short, the Court of Appeal allowed the appeal and substituted a sentence of sixteen months’ detention in a young offender institution, emphasising that the sentencing judge should have reduced the adult sentence to reflect that the offence was committed while the appellant was still seventeen years old.

R v Ghafoor [2002] EWCA Crim 185
Clarke and Others [2018] EWCA Crim 185; [2018] 1 Cr. App. R. (S) 52