Advocates should be mindful that a sentencing exercise in serious cases involving young adults, crossing from late teens to adulthood, should not be a simplistic or arithmetical approach. In certain circumstances, a departure from what seems likely to attract an inevitable custodial sentence, can be justified. The case of R v JT  EWCA Crim 1942 shows that a more individualistic approach is to be encouraged.
In this case, the Court of Appeal took an individualistic approach to the sentencing of a vulnerable young person. It is to be applauded and encouraged.
In May 2016 at the age of 15, the appellant was charged with arson having deliberately set fire to some newspaper whilst on a bus. His actions led to the complete destruction of the bus and catastrophic damage to a nearby bus station to the tune of £1.8m.
For six months prior to the offence, he been a ‘looked after’ child after his mother had placed him voluntarily into care. Between May 2016 and May 2017 the appellant wasmoved to four different placements. He had not wanted to go into the care system but no member of his blood family would give him a home. Despite this, he continued to visit the Rotherham area where his family lived. It was as he was on his way back from there to a children’s home in Barnsley that the offence was committed.
In June 2017, the local authority sent him to an activity placement centre in Lancashire for a period of twelve weeks. This had led to a turnaround in his behaviour. He then returned to South Yorkshire, where he lived in semi-independent accommodation, undertaking education and training.
By 28 January 2018, the author of the pre-sentence report wrote:
“[The appellant was] a very different young person, having matured and developed into a young man open and willing to change his behaviour and focused on making a success of his life.”
It was also reported that a custodial sentence would put the progress he had made at risk.
The sentencing judge had the benefit of the PSR and a psychiatric report from a child and adolescent psychiatrist which concluded that the appellant had ‘symptoms consistent with ADHD’ – a condition likely to give rise to impulsive behaviour. Psychiatric intervention in the community was suggested.
The first instance judge took an admittedly ‘arithmetical approach’ and, starting at two-thirds of an adult sentence of 7 years, a commensurate sentence of 56 months was reduced to 3 years to reflect full credit for the appellant’s early guilty plea.
On appeal, the CA found that, firstly, the starting point of 7 years was too high. This appellant had been messing around with a cigarette lighter and, if he had been an adult, the sentence after trial would not have exceeded six years.
Secondly, the judge’s reference to the guideline on sentencing for youths was ‘cursory and inadequate’. It was an inaccurate reflection of the reduction suggested in the guideline, but it also failed to reflect the detailed guidance set out in that guideline. The appellant first appeared at court after 1 June 2017 meaning that the Sentencing Council guideline on sentencing children and young people applied.
“Paragraph 1.2 emphasises that, whilst the seriousness of the offence will be the starting point, the approach to sentencing should be individualistic and focused on the child or young person as opposed to offence focused, with the focus being on rehabilitation where possible.In paragraph 1.5 it is emphasised that children and young people are not mini adults; they have not attained full maturity. That impacts on their decision-making and risk-taking behaviour.Paragraph 1.16…. deals with the effect and significance of an offender being a ‘looked after’ child and the complexities and difficulties to which that gives rise”.
Thirdly, the guideline sets, as a broad guide, the appropriate sentence for those aged 15-17 as being in the region of a half to two-thirds of the adult sentence. The CA found that there was no proper basis for this appellant’s reduction having been set at two-thirds rather than a half. The maximum sentence of custody the judge should have imposed was two years’ detention. If a sentence of custody was appropriate, it should have been a detention and training order.
Lastly, the Appellant was not sentenced for almost two years after the offence took place and the trial judge found that he was wholly responsible for the delay in sentencing. The CA disagreed.
On appeal, the CA substituted the sentence with one of a Youth Rehabilitation Order of 18 months with a number of conditions, including a curfew. Whilst “a not insignificant custodial sentence” may have properly reflected the seriousness of the offence, it failed to reflect (a) the very low culpability involved in the offence and (b) the approach required by the Sentencing Council guideline.
The CA took into account the child’s age, low culpability and individual circumstances when considering the matter. It was an exceptional decision.
Advocates should be aware of this approach when mitigating in serious cases involving children offending at this difficult age, crossing from late teens to adulthood. In certain circumstances, a departure from what seems likely to attract an inevitable custodial sentence, can be justified and the approach should not be arithmetical.