Sentencing - the significance of age

It is important that solicitors make a careful note of the defendant's age at the time an offence is alleged to have taken place.

This will now limit, in all but exceptional circumstances, the penalty that a court may impose whatever the defendant's age on the date of sentence, if such a sentence was not available for that defendant on the date when the crime was committed.

This has already been applied in relation to an 18-year-old sentenced for riot (which is not a 'grave crime') committed when he was only 17.

This required the quashing of a sentence of four years and its replacement by a detention and training order for 18 months, allowing a six-month discount on the maximum available for that age group of 24 months (R v Ghafoor [2002] Crim LR 739).

The same law has now been applied to a 15-year-old who, at first instance, received a detention and training order for an offence against section 20 of the Offences Against the Person Act 1861, committed when 14 years of age and he was not a persistent young offender.

In those circumstances, he could not receive a custodial sentence at all and a supervision order (because the matter had reached the Crown Court) was substituted.

In the youth court, only a youth referral order would have been available for such a youth.

If a youth under 18 is alleged to have committed a 'grave crime', the law at present requires a youth court or magistrates' court to consider whether a sentence of more than two years may be required (whether or not the particular youth could, in the youth court, receive a custodial sentence at all).

The matter is subject to review in the House of Lords.

In R (on the application of C) v Sheffield Youth Court (2003) The Times, 3 February, this law was confirmed but interesting comments were made about the range of issues that could be referred to by a defence lawyer at the mode-of-trial hearing.

Traditionally, the youth court has allowed a greater ambit than the adult court and has allowed, for instance, a youth's good character to be mentioned.

However, in this judgment it was confirmed that the defence may mention any undisputed mitigation which most importantly might include a guilty plea, thus bringing to the court's attention the need for a significant discount on the sentence otherwise to be considered.

Detention and training

The Youth Justice Board has recently published research comparing the effect of intensive supervision and surveillance community orders against four or six months detention and training orders.

This is of importance to defence solicitors mitigating on behalf of youths who might otherwise go to detention, as all acting in the criminal justice system are under the statutory duty to have regard to the primary objective of that system, namely to prevent re-offending.

The table below illustrates the much greater speed and extent to which offending behaviour will be addressed in the community rather than on short detention and training orders.

Probation interviews

R v Elleray (2003) The Times, 28 February, emphasises that solicitors must always advise defendants, especially in allegations of sexual crimes, to exercise great caution in what they say to a probation officer.

In particular, defendants should not admit to any crime to which they have not entered a plea or asked to be taken into consideration.

This is so notwithstanding that there may, as a result, be a less open relationship between defendant and probation officer.

The advice is an inevitable consequence of the decision in this case.

Although the court seeks to discourage prosecutions of this kind, they reached a conclusion which cannot be ignored.

Mr Elleray entered a plea of guilty to a lesser offence on the basis of a plea agreed between the Crown and the defence.

It would have resulted in a lesser prison sentence.

However, in interview with the probation officer while a pre-sentence report was prepared, he admitted to two offences of rape upon the same woman.

The pre-sentence report was disclosed in accordance with the statutory requirements to the Crown Prosecution Service and a new indictment was preferred.

The defence sought to exclude the admissions as they were made without caution and without legal advice.

The court declined to do so and a substantial prison sentence was imposed.

Breach proceedings

R v Chute (2003) The Times, 13 February, is a reminder that the decision in R v Jordan (1998) 2 Crim APP R (S) 83, is as good law for the sentence of a drug treatment and testing order as it is for all other community orders.

In this case, the drug treatment and testing order had been made by a magistrates' court, which thus accepted jurisdiction to deal with an allegation of domestic burglary.

The defendant breached the order.

The magistrates then purported to commit him for sentence.

As they had accepted jurisdiction to deal with the case in the first instance, that was not an option available to them.

They had to deal with the matter on breach within their own powers.

This will emphasise the need for solicitors to make strong arguments for summary jurisdiction at a mode of trial hearing applying, as appropriate, the Lord Chief Justice's guidance in the guideline decision for cases of domestic burglary of R v McInerney and Keating [2003] Crim LR 209.

Abuse of process

In a further extension of the powers to stay a case for abuse, the Court of Appeal has indicated in R v Jones (Michael) [2003] Crim LR 391 that, save in excep-tional circumstances, a charge of indecent assault should not be used in place of an allegations of unlawful sexual intercourse with a girl under 16 merely because the 12-month time limit for the bringing of such an allegation had expired, even if the facts only came to notice after the time limit had run out.

By Anthony Edwards, TV Edwards, London