Criminal law

Sentencing - grave crimes

The law on the sentencing of 'grave crimes' committed by young offenders has been significantly clarified by the recent decision in R (W) v Thetford Youth Court (2002) Crim LR 681 and R (W) v Southampton Youth Court (2002) Crim LR 750.

Where an allegation of 'grave crime' is made the youth court will be required to consider whether the magistrates courts' powers are sufficient or whether the court should decline jurisdiction so that the crown court will have power under section 91 of the Powers of Criminal Courts (Sentencing) Act 2000 to impose detention of any period up to the maximum available for that offence.

The law is well established for offenders who are aged 12 and older but younger than 15 and persistent young offenders, or those aged 15 and older but younger than 18.

For this group, a 24-month detention and training order is available in the magistrates court and if a 'grave crime' is alleged the court will consider whether it might be necessary to impose a longer sentence.

However, considerable confusion had existed as to the position for those who are at least ten years old but younger than 12, or at least 12 years old but younger than 15 but not persistent young offenders.

On this group no detention and training order can be imposed.

It was thought for a time that the test must be whether the court believed it necessary that there be any period of detention.

However, this is now shown to be wrong.

In each of the decisions referred to the court has confirmed that the powers of section 91 should not be used unless the court believes that a sentence of at least two years is in fact required.

If such an order is not required then the youth will inevitably be dealt with by a non-custodial outcome.

In R v Ghafoor (2002) Crim LR 739, the court emphasises a doctrine of sentencing law which will be of great assistance to those who commit crime when younger than the age of 18 but are not convicted until after they reach that age.

In this case, the defendant had taken part in a riot (which is not a grave crime) when 17 years of age.

Therefore, the maximum sentence available was a 24-month detention and training order.

However, the case did not proceed until he was 18 and when he appeared in the Crown Court a four-year sentence was imposed upon him.

He appealed on the basis that this breached the provisions of article 7 of the European Convention on Human Rights as he had received a sentence which was not available at the time he committed the offence.

The court declined to deal with the matter under the convention but emphasised an established doctrine of English sentencing law that the starting point for sentence for any defendant was the sentence available on the date he committed the offence.

Only in exceptional circumstances should a court move from that starting point.

In Ghafoor, nothing in the riot which had taken place amounted to exceptional circumstances.

Therefore, the starting point for his sentence was 24 months.

However, because a guilty plea had been entered it was necessary to give some discount and, because of the restrictions on the imposition of detention and training orders had he been 17, the next available sentence was 18 months.

Discount

A useful summary of the law on giving a discount in sentence by reason of guilty plea is contained in R v Hussain (2002) Crim LR 327.

This confirms that there is no statutory entitlement to a discount.

Section 152 of the Powers of Criminal Courts (Sentencing) Act 2000 gives no such right.

It is merely a requirement to indicate what discount, if any, is being given by reason of the stage in the proceedings at which a guilty plea was indicated.

However, having made that point, the court emphasised clearly that there was a policy to encourage pleas of guilty and while a discount may be reduced for a late plea or where the prosecution case was strong some discount should still be given.

In the case of R v Eastwood (2002) Crim APP R (S) 318, the court held that a normal credit should be given, notwithstanding a later guilty plea where the defendant had never disputed the facts but had taken advantage of what was described (with the benefit of hindsight) as 'over-cautious' legal advice.

This should give confidence to solicitors who doubt the propriety of a plea that they should check their facts and law before taking a step from which it is difficult to resile.

The decision ensures that the client will not suffer.

Expectation

While the principle of expectation is now well established, solicitors will wish to ensure that at the time on which they rely for the creation of the expectation the court was fully informed of all relevant facts.

In R v McHoul (2002) Crim LR 746, the defence had prevented the court knowing of previous convictions and notwithstanding an indication given by the court at that time it was not bound by it because the position was changed by the disclosure of the previous record.

The use of the plea before venue procedure has, in the case of over-cautious magistrates, resulted in many cases being committed for sentence to the crown court, which then imposes sentences within the magistrates court's powers.

In R (Sogbesan) v The Inner London Crown Court (2002) Crim LR 748, such a situation occurred where a defendant of 18 of good character had stolen items to the value of 216 from his employer.

The magistrates had committed for sentence and the crown court judge imposed a sentence of 28 days.

Because this sentence is less than six months and the trial is not on indictment it is not possible to appeal to the Court of Appeal from such a decision.

The only remedy is of judicial review.

While the courts have historically been reluctant to allow such a review, in this and in similar cases it has acknowledged the need to do so, there being no other remedy.

It is significant that on the particular facts, a period of imprisonment of any length was held to be so far outside the courts sentencing discretion as to demonstrate an excess of jurisdiction or an error of law.

This will be particularly helpful in areas where theft from an employer is still treated as a situation where custody, however brief, is inevitable.

Such sentences are out of line with decisions of the senior courts which indicate that custody should seldom be used for offences of dishonesty by first offenders where a suitable community penalty can be imposed.

By Anthony Edwards, TV Edwards, London