QUEEN'S BENCH DIVISION
B e f o r e :
MR JUSTICE PITCHFORD
|BALHAM YOUTH COURT||(DEFENDANT)|
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MR S CHIPPECK appeared on behalf of the DIRECTOR OF PUBLIC PROSECUTIONS, the INTERESTED PARTY
Crown Copyright ©
"Only has one previous caution -- No custody available in the Youth Court".
"Not all facts are admitted. Not really know each other [no doubt referring to the victim knowing the claimant] Words exchanged -- all parties get off bus together -- No other particular aggravating factors -- suggest RefO [which presumably means 'referral order'] would be sufficient. Will be a guilty plea".
"(2) A court shall not make a detention and training order --
(a) in the case of an offender under the age of 15 at the time of the conviction, unless it is of the opinion that he is a persistent offender".
"(1) 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 Courts (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".
"(3) 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 simple principle underlying the current legislation for sentencing very young offenders is that, generally speaking, first-time offenders aged 13 and 14, and all offenders aged 11 and 12, should not be detained in custody. For 13 and 14 year olds, where the youth persists in offending, the position changes. Clearly some offences or offending are so serious in themselves that the court has to contemplate the possibility of sending an under 15 year old for a period in custody, despite the general approach of the legislation. That may be to protect the public or it may be that the long-term interests of the offender require such a drastic course, even though he is under 12 or under 15 but not a persistent offender. To cater for this possibility Parliament has left open to the courts the use of section 91 of the Powers of Criminal Courts (Sentencing) Act 2000. The need in exceptional cases to make use of these powers cannot, however, have been intended to water down the general principle".
"Finally I must refer to R (on the application of D) v Manchester City Youth Court [then he gives the reference]. That was a decision of mine on an application precisely similar to the applications made in these cases. The facts of the offence are however slightly different. In that case I said (paragraphs 22 and 23 page 578):
'22. In my judgment, the effect of section 24 is that a Magistrates' Court should not decline jurisdiction unless the offence and the circumstances surrounding it and the offender are such as to make it more than a vague or theoretical possibility that a sentence of detention for a long period may be passed. Although, under section 91 and pursuant to recent authority, it is no longer necessary for a court to pass a sentence of at least three years, in my judgment section 91 is primarily applicable to cases of such gravity that the court is or may be considering a sentence of at least two years. Anything less, it seems to me, falls primarily to be dealt with as a detention and training order.
23. There is no statutory restriction on a court, using its powers under section 91, passing a sentence of less than two years. But it seems to me that it will only be in very exceptional and restricted circumstances that it will be appropriate to do so, rather than making a detention and training order. The fact that an offender, as here, does not qualify for a detention and training order because he is not a persistent offender does not seem to me such an exceptional circumstance as to justify the passing of a period of detention of less than two years under section 91 of the Act of 2000'".
"29. My conclusion is that the authorities cited to this court do not undermine or alter my conclusions already expressed on the relationship between sections 91 and 100. I adhere to my view that in respect of offenders under 15 a custodial sentence will ordinarily only be available in the form of a detention and training orders. If the court is prohibited from making such an order in general an order under section 91 will not be appropriate. Having considered the submissions made in this court an a rather fuller basis than those before me in D v Manchester City Youth Court, I see no reason to change to any great extent the views which I expressed in this case. I remain of the opinion that where an offence or offences are likely to attract a sentence of less than two years custody the appropriate sentence will be a detention and training order. In the case of an offender under 15, who is not a persistent offender or a child under 12, the most likely sentence will be a non custodial sentence. It follows that in most cases the appropriate place of trial will be the youth court.
30. However, I accept that there may be cases where, despite the fact that the offender is under 15 and no detention and training order can be made, the only appropriate sentence is a custodial sentence pursuant to section 91 and possibly for a period of less than two years. But I remain of the opinion that the circumstances of the offence and offender will only really call for a sentence pursuant to section 91, particularly if the court is dealing with an offender under the age of 12. In expressing my views as I did in D v Manchester City Youth Court, my use of the expression 'very exceptional' may be more restrictive than was strictly necessary or justified. But, I remain of the view that the mere fact that a youth court, unable to make a short detention and training order, considers that the option to pass a short custodial sentence should be available, does not mean that it should decline jurisdiction. It seems to me that in such circumstances the fact that a detention and training order is not available indicates that Parliament intended that generally a non-custodial sentence should be passed. Perhaps it would be better to say that cases involving offenders under 15 for whom is detention and training order is not available will only rarely attract a period of detention under section 91; the more rarely if the offender is under 12".
"The other guidance which justices should have in mind is that they must be of the view that, if they were going to send a case to the Crown Court, it was such a serious case that detention above two years was required, or it was one of those cases where they considered that the appropriate sentence was not only a custodial sentence, but a custodial sentence which was approaching the two-year limit which was normally applicable to older offenders".
"This decision endorses the view expressed in R v Manchester City Youth Court and R v Thetford Youth Court, to the effect that a defendant under the age of 15 who is not a 'persistent offender' for the purposes of the Powers of criminal courts (Sentencing) Act 2000, s 100 and thus not eligible for a detention and training order, should not be committed to the Crown Court for trial with a view to a sentence of detention under section 91 unless the appropriate sentence would be of the order of two years or thereabouts, allowing presumably for his age and any other relevant factors".
"2. In giving this judgment we are not seeking to set new guidelines. If we were intending to do so, we would have sought the advice of the Sentencing Advisory Panel before giving this judgment. Instead, we are seeking to draw together the principles which are already clearly established by the reported decisions of this court".
"4. Faced with that background the courts have no alternative but to adopt a robust sentencing policy towards those who commit these offences".
"5. In his submissions on behalf of the Attorney General, Mr Pownall said that the bracket of sentencing which the authorities reveal for offenders of the sort we have been describing is 18 months to five years ... We agree with what Mr Pownall said, subject to this. If the offences are committed by and offender who has a number of previous convictions and if there is a substantial degree of violence, or if there is a particularly large number of offences committed, the five year upper limit may not be appropriate.
6. Mr Pownall also indicated that the authorities suggest that the upper limit is three years when no weapon is used. Again we agree, subject to the qualifications which we have already expressed in relation to the five year figure".
"In that case three years' detention was upheld in the case of an appellant aged 14 at the time he committed the offence of attempting to rob a man in the street. The appellant and a group of others, including a young woman, approached a man who was on his way home from work, carrying a lap-top computer. The young woman asked the man for money, which he refused to give her. She abused him and flicked his spectacles off, causing them to fall to the ground. The appellant then went up to the man, punched him on the face and head-butted him. As he did so, he told the others to take the man's wallet and computer. The appellant produced a knife with a four-inch blade and the man ran off. The appellant and one of the others chased him and forced him to the ground. The man managed to hold on to his computer and ran away. The court pointed out that they had to look at the principles involved in sentencing in a case of this kind. They recognised that when sentencing an offender aged 14 or 15 the appropriate sentence would always be shorter than that which would be appropriate for an adult. A balance was required between the youth of an offender, deterrence and the effect of a long sentence on the perception of the offender. The court also considered the gravity of the offence which had been committed. A further consideration was that attempted offences usually carried a lesser sentence than that imposed for the full offence. This was not a potent factor because of the circumstances. The important features of the case were that the appellant was convicted after a trial; the robbery was committed at night; the appellant was with others and took a prime role in the attempted robbery. The court concluded that the sentence was not manifestly excessive or wrong in principle".
"In outline the Crown case was that at 3.25 pm on 26th February 2001 Thomas Pentecost, aged 13, was walking home from school when he was approached by the appellant and by mark Levitt, aged 15. He knew both boys, but not well. He knew Mark was a bully. He was scared of both boys. The appellant said to him: 'Give me your phone'. When he refused the appellant got aggressive. He did not swear or issue any threats but unzipped Thomas' jacket and tried to take Thomas' phone out. Thomas zipped his jacket up again and put his hand in his jacket and then took his phone out and the appellant then grabbed the phone and refused to give it back. The appellant pushed Thomas against the wall before running off with Mark Levitt. The statement made by Thomas Pentecost said that Mark throughout just stood watching what Anthony was doing, and that nothing was said to involve Mark other than his presence standing there".
"We think that the realistic position is that there was no real possibility of his receiving anything like a two year sentence".
"The court in C and D applied too low a threshold for a sentence under section 91. There is no real possibility of such a sentence in that case, given the small amount involved and the context, namely violence between schoolgirls known to each other, given that both C and D are of previous good character. The decision of the Youth Court was outside the range of decisions open to it and was wrong. It will be quashed".