AB, R. v [2018] EWCA Crim 2445

[2018] EWCA Crim 2445

Case No 2018/01230/A1

IN THE COURT OF APPEAL

CRIMINAL DIVISION

Venue Royal Courts of Justice

Date Friday 10 th August 2018

The Strand

London

WC2A 2LL

B e f o r e:

LADY JUSTICE THIRLWALL DBE

MR JUSTICE KNOWLES

and

MR JUSTICE GOOSE

Between

R E G I N ACrown

- v -

Between

A B

Miss M Williams appeared for Appellant

J U D G M E N T (Approved)

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[1]The provisions of section 45 of the Youth Justice and Criminal Evidence Act 1999 are engaged in this case because the appellant is under the age of 18. An order was made under section 45 in the Crown Court in the following terms:

"No matter relating to [the appellant], a person concerned in the proceedings, shall while he is under the age of 18 be included in any publication if it is likely to lead members of the public to identify him as a person concerned in the proceedings and in particular: a) His name; b) His address; c) The identity of any school or other educational establishment attended by him; d) The identity of any place of work; and e) Any still or moving picture of him."

We extend the terms of the order under section 45 to this appeal. The appellant will be referred to as "AB".

[2]The appellant appeals against sentence with the leave of the single judge. He was born on 19th April 2001 and is now aged 17. At the time of these offences he was aged 16.

[3]On 12th March 2018, in the Crown Court at Northampton, having been committed for sentence by the Youth Court pursuant to sections 4A and 3B of the Powers of Criminal Courts (Sentencing) Act 2000, the appellant was sentenced by Mr Recorder Chinery to 36 months' detention in a young offender institution. The sentence was imposed for five offences as follows: having an article with a blade or point, contrary to section 139(1) of the Criminal Justice Act 1988 (offence 1), eight months' detention; possession of a controlled drug of Class A, contrary to section 5(2) of the Misuse of Drugs Act 1971 (offence 2), eighteen months' detention; possession of an offensive weapon (ammonia), contrary to section 1(1) of the Prevention of Crime Act 1953 (offence 3), eight months' detention; possession with intent to supply Class A drugs (cocaine), contrary to section 5(3) of the Misuse of drugs Act 1971 (offence 4), 36 months' detention; and possession with intent to supply Class A drugs (heroin), contrary to section 5(3) of the Misuse of Drugs Act 1971 (offence 5), 36 months' detention. All sentences were ordered to be served concurrently.

[4]The appellant relies on three grounds of appeal. The first ground is that the Recorder should have imposed a sentence of a detention and training order for a maximum of 24 months, because there was no finding that the offences were "grave crimes". The second ground is that the sentences on all counts were manifestly excessive because inappropriate discount was given to the appellant for his age (being 16 at the time of the offences). The third ground is that insufficient weight was given to the appellant's personal mitigation when the judge fixed sentence.

[5]The facts of these offences can be shortly stated. The first two offences, namely having an article with a blade or point and possession of a controlled drug of Class A, were committed on 24th May 2017. On that afternoon a police officer was on duty in the area of Farndon Road in Wellingborough. He saw the appellant riding a bicycle and decided to stop and search him, he was initially unsuccessful, as the appellant rode off. He was later stopped in an underpass. He was searched. Within his waistband, the police found a knife inside a sheath, with a blade of six to eight inches in length. A search was carried out at his home address and a wrap of cocaine was found hidden inside a trainer, said to be for his personal use. He was arrested and released on police bail.

[6]The third offence of possession of an offensive weapon was committed whilst the appellant as on bail. On 14th August 2017 he was searched in the area of Osprey Lane in Wellingborough. Police officers found in his possession a Lucozade bottle containing a concentrated ammonia solution.

[7]Offences 4 and 5, namely possession with intent to supply Class A drugs (cocaine and heroin respectively), occurred on 1st October 2017. The appellant was in the home address of an older man when the police carried out a search. In the living room of that house the appellant was found to be in possession of 66 individual wraps containing drugs and two further bulk quantities ready for further street dealing. There were 40 individual £10 deals of crack cocaine with 5 grams of bulk cocaine ready for dividing into further deals. There were also 26 wraps of heroin, with 5 grams of further heroin also ready for division into individual wraps. The street value of the drugs was estimated to be in the region of £1,660. A search was also carried out at the appellant's address, where he was living with his girlfriend. £900 was recovered from a box in her bedroom. The appellant's mobile phone contained text messages indicative of involvement in drug dealing.

[8]In sentencing the appellant, the Recorder expressly took into account the principles which apply to the sentencing of young people within the Youth Guideline of the Sentencing Council. The Recorder also took into account the fact that the appellant had no previous convictions, the contents of the pre-sentence report dated 9th November 2017 and the addendum report dated 11th March 2018, which dealt with the effect on the appellant of a period in custody after his breach of bail. Further, the Recorder took into account letters written by and on behalf of the appellant. The Recorder appropriately imposed a global sentence on the two offences of possession of Class A drugs with intent to supply. He imposed concurrent sentences on the other counts, but took them into account in fixing the overall sentence. By this process, a sentence of 36 months' detention was imposed, with concurrent sentences on all other offences. Whilst he did not specifically identify a sentence appropriate for an adult who had pleaded guilty to the same offences, before adjusting for the appellant's age, the Recorder stated that, as an adult, the sentence could have been up to seven years' imprisonment.

[9]The first ground of appeal is that the Recorder incorrectly imposed a sentence in excess of 24 months' detention, when there had been no finding by the court of "grave crimes". This ground can be dealt with shortly. The appellant was committed to the crown court for sentence under section 3B of the Powers of Criminal Courts (Sentencing) Act 2000, which provides:

"3B Committal for sentence on indication of guilty plea by child or young person (1) This section applies where – (a) a person aged under 18 appears or is brought before a magistrates' court ('the court') on an information charging him with an offence mentioned in subsection (1) of section 91 below ('the offence'); (b) he or his representative indicates under section 24A or (as the case may be) 24B of the Magistrates' Courts Act 1980 (child or young person to indicate intention as to plea in certain cases) that he would plead guilty if the offence were to proceed to trial; and (c) proceeding as if section 9(1) of that Act were complied with and he pleaded guilty under it, the court convicts him of the offence. (2) If the court is of the opinion that – (a) the offence; or (b) the combination of the offence and one or more offences associated with it, was such that the Crown Court should, in the court's opinion, have power to deal with the offender as if the provisions of section 91(3) below applied, the court may commit him in custody or on bail to the Crown Court for sentence in accordance with section 54(1) below. (3) Where the court commits a person under subsection (2) above, section 6 below (which enables a magistrates' court, where it commits a person under this section in respect of an offence, also to commit him to the Crown Court to be dealt with in respect of certain other offences) shall apply accordingly."

[10]The provisions of section 5A(1) permit the crown court to deal with an offender committed to it under section 3B in any way in which it could deal with him if he had been convicted of the offences on indictment before the crown court. Under section 91(1) and (3) of the 2000 Act, it is provided that: "91 Offenders under 18 convicted of certain serious offences: power to detain for specified period (1) Subsection (3) below applies where a person aged under 18 is convicted on indictment of – (a) an offence punishable in the case of a person aged 21 or over with imprisonment for 14 years or more, not being an offence the sentence for which is fixed by law; or section 29(6) of that Act (exceptional circumstances which justify not imposing the minimum sentence). … (3) If the court is of the opinion that neither a youth rehabilitation order nor a detention and training order is suitable, the court may sentence the offender to be detained for such period, not exceeding the maximum term of imprisonment with which the offence is punishable in the case of a person aged 21 or over...”

[11]Accordingly, the committal of the appellant by the Youth Court to the Crown Court under section 3B of the 2000 Act was correct for the offences of possession of Class A drugs with intent to supply, being the fourth and fifth offences to which the appellant had pleaded guilty. The remaining offences were also correctly committed to the crown court under section 6 of the 2000 Act, as related offences. In the circumstances, we reject the first ground of appeal.

[12]The second and third grounds, namely that the sentences were manifestly excessive and that insufficient weight was given to mitigation, can be taken together. The central point of appeal is that the sentence of 36 months' detention was manifestly excessive for the appellant, who was aged 16 at the time of the offending and without previous convictions. In sentencing the appellant, the Recorder correctly identified the appellant as having a significant role with category 3 harm under the Drugs Offences Guideline for offences of supply. As an adult for Class A offences the starting point, before aggravating and mitigating factors was four and a half years' custody after a trial. The category range was three and a half years to seven years. In imposing a global sentence for all offending, as the Recorder did, allows for an adjustment upwards in the range to take account of the other offences, including the fact that possession with intent to supply involved both cocaine and heroin. It also included the other offences and the fact that he was on bail for some of the offending. For an adult over the age of 18, the sentence after trial, but before discount for the guilty plea, would have been appropriate at seven years' imprisonment. Accordingly, adopting such a starting point as the Recorder appeared to do, of seven years after trial was appropriate for these offences. However, such a sentence requires downward adjustment to reflect personal mitigation. The appellant had no previous convictions and had now spent some time in custody after breaching his bail; also, the contents of the letters written by and on behalf of the appellant were to be taken into account. These mitigating factors serve to reduce the sentence for an adult after trial to one of six years' custody. A discount for the appellant's early pleas of guilty required a further adjustment of one-third, to four years' detention, and a further discount to reflect the fact that he was aged only 16 at the time of the offences. The Recorder correctly had in mind the need to apply a substantial discount to any sentence to reflect the reduced culpability of the appellant by reason of his age.

[13]The Sentencing Council Guideline for sentencing children and young people provides for a discount in the region of one-half to two-thirds of the adult sentence for those aged 15 to 17, as a rough guide (see paragraph 6.4(6) of the Guideline). In the circumstances, therefore, the period of four years' detention, after discount for a guilty plea, requires a further discount to two years' detention. It follows, therefore, that a sentence of 36 months' detention was manifestly excessive. Further, since the appellant was aged 17 at the time of sentence, the sentence should have been that of a Detention and Training Order under section 101 of the Powers of Criminal Courts (Sentencing) Act 2000.

[14]Accordingly, we quash the sentences of 36 months' detention in a young offender institution for the offences of possession of a Class A drug with intent to supply and substitute for them concurrent sentences of a 24 month Detention and Training Order. The remaining sentences will remain unaffected in their length but will be concurrent sentences of a Detention and Training Order.

[15]To that extent, this appeal against sentence is allowed. Epiq Europe Ltd hereby certify that the above is an accurate and complete record of the proceedings or part thereof.