England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT

		Royal Courts of Justice Strand London WC2
		3rd October 2006

1. MR JUSTICE BEAN: The question raised in this appeal by way of case stated is whether a 17 year old convicted of criminal damage to the value of less than £5,000 is liable to a custodial sentence in the Youth Court. In my view, the answer is that he is not.
2. The appellant was born on 20th April 1988. On 23rd February 2006 he appeared before District Judge Kitson in the Leeds Youth Court for sentence on two charges: one of theft, one of criminal damage. The latter offence concerned a door to the value of £50. The appellant had numerous previous convictions. The District Judge imposed concurrent Detention and Training Orders for 4 months on each charge. This is the minimum term of Detention and Training Order permitted by section 101 of the Powers of Criminal Court (Sentencing) Act 2000. As Rose LJ put it in R v Inner London Crown Court ex parte M and S [2001] 1 Cr.App.R(S) 99, the section has the effect of raising the custody threshold for defendants of the relevant age.
3. There is no challenge to the lawfulness of the sentence for theft and the appellant has completed his sentence, so the outcome of this appeal is of no more than academic interest to him. Nevertheless, the case is properly brought before this court to test the lawfulness of the sentence for criminal damage.
4. Since the Criminal Law Act 1977, offences of criminal damage involving less than a specified amount in value have been summary only. The legislation is now contained in section 22 of the Magistrates' Court Act 1980 and the specified value, originally £200, is now £5,000. Section 33(1)(a) of the 1980 Act provides that the maximum penalty in a Magistrates' Court (that is to say what is generally known as the adult court) is 3 months' imprisonment and/or a fine of £2,500. So an adult offender in the Magistrates' Court could not have received a custodial sentence of longer than 3 months for this offence of criminal damage, indeed could not have done so even if the value of the damaged item had been a hundred times greater.
5. On conviction in the Crown Court, for example alongside an indictable only charge to which it was related, a heavier sentence for an offence of minor criminal damage is possible (see R v Alden [2002] 2 Cr.App.R(S) 74) but even then, as Rose LJ said in that case, the value of the damage must be a significant factor when deciding the appropriate sentence.
6. Section 101(2) of the 2000 Act provides:

"The term of the Detention and Training Order may not exceed the maximum term of imprisonment that the Crown Court could, in the case of an offender aged 21 or over, impose for the offence."

Strictly speaking, this section does not apply in the present case since the offence was only triable summarily. But the section reflects the view of Parliament, in accordance with long-standing elementary principles of sentencing, that it cannot be right to impose on a young offender a more severe sentence than could have been imposed on an adult who had committed the same offence. As Mr Southey for the appellant puts it, the youth of a defendant before the criminal courts is a mitigating factor, not an aggravating one.

7. Applying that principle to the present case, I conclude that the sentence on the criminal damage count was one which the Youth Court had no power to impose. Since the appellant has, as I have said, served the sentence and the sentence on the theft charge is unaffected, I would simply quash the sentence imposed on the criminal damage charge, without remitting it to the Youth Court for sentence.
8. LORD JUSTICE MAURICE KAY: I entirely agree and would simply add these two points. The first is that this court only very rarely interferes with sentences passed in Magistrates and Youth Courts on appeals by case stated or upon judicial review. However, this is one of those rare and exceptional cases, given the unlawfulness of the sentence that was passed.
9. The second point I would add is that it may seem odd that a young offender who causes, say, £4,000 worth of criminal damage in circumstances which can only be described as serious is immune from a custodial sentence. However, that is the consequence of the way in which the legislation has been constructed and I simply adopt the analysis just proffered by Bean J. It may also seem odd that for an adult the maximum is 3 months. As it is understandable that a young offender should be sentenced more leniently than an adult, the outcome in relation to a young offender seems to me to be consistent with the policy enshrined in the present maximum available in connection with the prosecution of an adult.
10. Mr Southey, thank you very much indeed.
11. MR SOUTHEY: My Lord, thank you.