England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice The Strand London WC2A 2LL
		19th January 2017

Thursday 19^th January 2017

LORD JUSTICE SIMON: I shall ask Mr Justice Blake to give the judgment of the court.

MR JUSTICE BLAKE:

1. This appellant was born in August 1998 and is of previous good character. In June 2015, he was aged 16 years and 10 months when he allowed his bank account to be used by others to pay in and transfer out the sum of £18,900 that had been fraudulently transferred from the bank account of another (a well-known celebrity, Gloria Hunniford).
2. On 7^th March 2016 the City of London Magistrates' Court sent the appellant for trial to the Central Criminal Court because an adult, accused of playing a significant role in the fraud on Ms Hunniford and her bank account, who contested guilt was also being sent for trial, as was another young offender who had played a direct role in the fraud and allowed himself to be directed by others in removing a further £102,000 from the victim's bank account.
3. On 26^th May 2016, at the Central Criminal Court, the appellant and the other juvenile, Alan Dowie, pleaded guilty to two counts of arranging to receive, and converting criminal property. The appellant was then aged 17. There seems to have been some problem with arranging for funding for his representation. His sentence was adjourned, first, to August and subsequently to 30^th September 2016, by which time he had turned 18. Meanwhile, Dowie had been sentenced separately to a suspended sentence with a supervision requirement.
4. A pre-sentence report had been prepared on the appellant on 29^th July 2016. It helpfully set out the non-custodial options that were available. They were: a youth referral order with intensive supervision and surveillance, a youth referral order with less stringent supervision requirements, or a referral order. The author of the report recommended a 12 month referral order as, amongst other things, the conditions were met and it would lead to the appropriate treatment identified by the somewhat complicated statutory regime for dealing with young offenders. The author of the report, however, pointed out that for such an order to be made, the Crown Court would need to exercise its powers to remit the matter to the Croydon Youth Court, who alone had the power to make a referral order. Although the report did not refer to the legal regime, the same point is made, we note, at paragraph 12.20 of the Sentencing Guidelines Council's Overarching Principles on Sentencing Youths.
5. When the case was called on and opened by the Crown, in the particular circumstance of the offence and of the appellant, it was clear that a non-custodial penalty was under consideration by the judge. The appellant's role in these offences was at the lowest degree of culpability (category 5) in the money laundering guidelines for an adult, where the starting point was for £50,000; whereas the sum involved in the use of the bank account that the appellant was persuaded by others to permit them to use was considerably less (and, of course, he was aged 16 at the time).
6. The learned judge apparently made enquiries of counsel as to whether he could make a referral order, notwithstanding the indication in the pre-sentence report. We are told that the matter was put back and that it was suggested by both advocates that the judge could sit as a district judge under section 66 of the Courts Act 2003. A referral order or some similar sentence might have been expected in those circumstances.
7. We are satisfied, for reasons which we shall explain, that the judge in the Crown Court had no power to make a referral order, and that the pre-sentence report was accurate in that if such an order was to be made, a remittal to the Youth Court was required.
8. Instead, the judge imposed a 12 month rehabilitation order, and he gave his reasons for so doing.
9. The appellant now appeals, with the leave of the single judge, on the basis that: (1) the judge was bound to remit the matter to the Youth Court, unless he considered that there were exceptional reasons for not so doing; (2) if such a remittal had been made, the Youth Court was presumptively required to impose a referral order, as the conditions for making such an order were met; (3) the power to remit to the Youth Court and its own power to make a referral order were still retained, despite the fact that the offender had turned 18: see section 29(1) of the Children and Young Persons Act 1963, as well as a number of authorities of this court on the topic: for example, R v Ghafoor [2002] EWCA Crim 1857. Further, it is submitted that the referral order is both more lenient and the appropriate sentence, for the reasons given in the pre-sentence report, and that consequently the rehabilitation order was wrong in principle and, in any event, excessive.
10. Section 8(2) of the Powers of Criminal Courts (Sentencing) Act 2000 indicates that in a case such as this, where a young offender is being dealt with in the Crown Court, the Crown Court is required to remit the case to the relevant Youth Court "unless satisfied that it would be undesirable to do so". In R v Lewis (1984) 79 Cr App R 94, commenting on similar language used in the previous sentencing statute dealing with young offenders, Lord Lane CJ identified (at page 99) possible, albeit non-exhaustive reasons why it might not be desirable to remit the case to the relevant Youth Court:

(1) A trial judge would be better apprised of the facts;

(2) there was the risk of disparity of co-defendants being sentenced in separate courts; and

(3) remittance might result in delay, a duplication of procedures, and fruitless expense.

11. Guided by those observations, we make the following observations:

(1) Following the pleas of guilty in May 2016 by the appellant and the other juvenile co-defendant, there was no trial of their culpability. The adult who faced trial was in a wholly different position and was, in any event, acquitted.

(2) No judge had engaged in the examination of the appellant's culpability at that stage, and his circumstances and offending were very different to either of his two co-defendants. There was no link between the appellant and Dowie, save for the fact that those who directed the juvenile co-defendant Dowie had caused him to send funds into the appellant's bank account, which others then caused the appellant to withdraw.

(3) There could be no issue of unjust disparity if the proper regime for the sentencing of young offenders had been applied in this case, according to the current statutory guidance set out in the 2000 Act.

(4) No delay would have occurred if the case had been promptly remitted to the Youth Court in May following a guilty plea, because a pre-sentence report had yet to be prepared.

Accordingly, there seems to have been no reason why a judge whose attention had been directed to the matter would not have made a remittal order at that stage. The judge's attention was not directed to the matter at the time when it most usefully should have been and the duty to remit not considered.

12. If a remittal order had been made, the Youth Court would have been bound to make a referral order under section 16 of the Powers of Criminal Courts (Sentencing) Act, as the referral conditions set by section 17 were met. The appellant had pleaded guilty to the offence and had not been dealt with by a court before.
13. We have been given some helpful assistance by the Registrar as the relevant legal regime. The Youth Court is given exclusive competence to make a referral order and this was not a case where the Crown Court judge can acquire jurisdiction by exercising the general jurisdiction of a district judge. We are satisfied that, like the Crown Court, we have no power to make a referral order. In any event, it is not suggested, even if we did have the power, that we should now remit, given the passage of time since the plea of guilty and the problems that have arisen in this case.
14. Before us it is contended that the proper course now is for this court to impose a conditional discharge for 12 months. It is pointed out that, under section 5 of the Rehabilitation of Offenders Act 1974, as amended by the Legal Aid, Sentencing and Punishment of Offenders Act 2012, a conditional discharge and a referral order both share the features that they become spent automatically upon completion of the order in the absence of the commission of another offence during the period of the order. By contrast, a rehabilitation order imposed in respect of a person under 18 years of age only becomes spent six months after the last date of the order, i.e. some 18 months from the date of sentence.
15. In this case we are told that the rehabilitation order imposed by the Crown Court has been complied with by the appellant in the intervening four months. He has attended, we are informed, six times upon the Probation Service. The pre-sentence report and the other material before us, and before the sentencing judge, indicates a great deal of family support for the appellant, and there is no assessment of risk of re-offending.
16. In the circumstances we turn our attention to the proposal for a conditional discharge as a way of disposing of the appellant's offence, given the history, the circumstances of the offence and the particular circumstances of the appellant.
17. Section 12 of the Powers of Criminal Courts (Sentencing) Act 2000 enables us to impose a conditional discharge if, having regard to the circumstances, including the nature of the offence and the character of the offender, it is inexpedient to inflict punishment. Clearly, some punishment has already been inflicted, pursuant to the rehabilitation order. But, given the procedural errors that have occurred, and the unusual circumstances of this case, exceptionally, we conclude, notwithstanding the nature of the offence and its potential seriousness, that in this case a conditional discharge is the appropriate form of disposal.
18. We therefore quash the rehabilitation order imposed by the Crown Court and substitute for it a conditional discharge for a period of 12 months.
19. To this extent this appeal is allowed.