QUEEN'S BENCH DIVISION
B e f o r e :
MR JUSTICE PITCHFORD
|THE QUEEN ON THE APPLICATION OF C||(CLAIMANT)|
|SUSSEX (CENTRAL) MAGISTRATES' COURT||(DEFENDANT)|
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"Where a person under the age of 18 appears or is brought before a magistrates' court on an information charging him with an indictable offence other than homicide, he shall be tried summarily unless-
(a) the offence is such as is mentioned in subsection (1) or (2) of section 91 of the Powers of Criminal Court (Sentencing) Act 2000 (under which young persons convicted on indictment of certain grave crimes may be sentenced to be detained for long periods) and the court considers that if he is found guilty of the offence it ought to be possible to sentence him in pursuance of subsection (3) of that section."
"Grave offences" for this purpose are defined by section 91(1) of the Powers of Criminal Courts (Sentencing) Act 2000, they include:
"... (a) an offence punishable in the case of a person aged 18 or over with imprisonment for 14 years or more, not being an offence the sentence for which is fixed by law ...."
Burglary is such an offence. That being the case, the justices were empowered by section 1A Magistrates' Court Act 1980 to commit both the charge of burglary and the charge of criminal damage for trial at the Crown Court, provided the justices were satisfied it ought to be possible to sentence under section 91 of the Act of 2000.
"If the court is of the opinion that none of the other methods in which the case may legally be dealt with 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 18 or over, as may be specified in the sentence."
The correct approach to the exercise of the power under section 24(1) Magistrates' Court Act 1980 has been considered by this court in several previous cases, recently and notably R (On the Application of D) v Manchester City Youth Court  1 Cr App R (S) 573; R (On the Application of W) and Thetford Youth Justices v Director of Public Prosecutions, together with R (On the Application of M) v Waltham Forest Youth Court Justices and the Director of Public Prosecutions  EWHC 152 Admin, and R (On the Application of W) v Southampton Youth Court, together with R (On the Application of K) v Wirral Borough Magistrates' Court  EWHC 1640 Admin
"While the need to impose the appropriate sentence is important, so is the need to ensure that wherever possible the trial should take place in the appropriate setting. That is more satisfactorily achieved in a Youth Court than in a Crown Court."
"18.... In an attempt to underline what was said by Gage J in that case [the Lord Chief Justice was referring to Thetford Youth Justices], I would indicate that justices should start off with a strong presumption against sending young offenders to the Crown Court unless they are satisfied that that is clearly required, notwithstanding the fact that the forum for trial will not be so appropriate as the Youth Court.
19. The other guidance which justices should have in mind is that they must be of the view that, if they are going to send a case to the Crown Court, it is such a serious case that detention above two years is required, or it is one of those cases where they consider that the appropriate sentence is not only a custodial sentence, but a custodial sentence which is approaching the two-year limit which is normally applicable to older offenders with whom they have to deal. To do otherwise would not comply with the intention of the legislation to which I have referred."
It seems to me that the Youth Court should have been assisted further by reference at least to the Manchester and Thetford cases, certainly if the justices were to be faced with a submission, as they were by the Crown, that committal was appropriate. The test is whether there is more than a theoretical or vague possibility that the Crown Court would impose a sentence approaching two years' detention or more. If the defendant's guilt is established, he committed a serious and deeply unpleasant offence. Were he an adult with a criminal record, it is almost certain he would face a significant period of imprisonment. He is, however, aged 15 years and of good character. Notwithstanding the decision in Winn and the guidance in Brewster, it was in my view highly improbable that the Crown Court would have sentenced this youth to a period of detention under section 91.
"31. The approach to be adopted where a defendant crosses a relevant age threshold between the date of the commission of the offence and the date of conviction should now be clear. The starting point is the sentence that the defendant would have been likely to receive if he had been sentenced at the date of the commission of the offence. It has been described as 'a powerful factor'. That is for the obvious reason that, as Mr Emmerson points out, the philosophy of restricting sentencing powers in relation to young persons reflects both (a) society's acceptance that young offenders are less responsible for their actions and therefore less culpable than adults, and (b) the recognition that, in consequence, sentencing them should place greater emphasis on rehabilitation, and less on retribution and deterrence than in the case of adults. It should be noted that the 'starting point' is not the maximum sentence that could lawfully have been imposed, but the sentence that the offender would have been likely to receive.
32. So the sentence that would have been passed at the date of the commission of the offence is a 'powerful factor'...
33. That is not to say that the starting point may not be tempered somewhat in certain cases. We have in mind in particular cases where there is a long interval between the date of commission of the offence and the date of conviction. By the date of conviction, circumstances may have changed significantly."