NH, R v

Where an offender crosses a statutory age threshold between the offence and conviction, the sentencing court must begin with the sentence likely to have been imposed at the date of the offence. Departure requires a good reason arising from relevant later circumstances. The seriousness of the original offence cannot itself justify departure from that starting point. Article 7 of the European Convention on Human Rights is not engaged where the applicable law has not changed between the offence and conviction.

The appellant, aged 14 when he committed an indecent assault, pleaded guilty in the Inner London Crown Court after he had turned 15. He received a 12-month detention and training order.

On the agreed basis of plea, he had not participated in the theft or initial coercion of the complainant. He accepted recklessness as to her consent when she performed oral sex on him. He had no previous convictions and was not a persistent offender.

The appeal concerned whether the sentencing judge could impose detention by departing, because of the offence's seriousness, from the sentence likely to have been imposed when the appellant was 14.

1. Appeal allowed. The court quashed the 12-month detention and training order and substituted a 12-month supervision order with 90 days of specified activities.
2. Section 100(2) of the Powers of Criminal Courts (Sentencing) Act 2000 prevented a detention and training order being imposed on an offender under 15 unless he was a persistent offender. The appellant was not a persistent offender.
3. Applying Ghafoor [2002] EWCA Crim 1857, where a defendant passes a relevant age threshold between offence and conviction, the starting point is the sentence likely to have been imposed at the time of the offence, rather than the maximum then available. A departure requires a good reason, such as a material change during a substantial interval or an increased tariff.
4. At age 14, given the appellant's lack of convictions and the pre-sentence report, the likely sentence was a supervision order with 90 days of specified activities. Although ten months had elapsed, there had been no material change: he committed no offence on bail and the tariff had not increased.
5. The seriousness of the offence was not a good reason to depart from that starting point. The statutory scheme and the reasoning in Ghafoor did not permit seriousness alone to justify a sentence that could not lawfully have been imposed at the date of the offence. The court found support in R v LM [2003] 2 Cr App R (S) 26 and Jones [2003] Crim LR 639.
6. Article 7 of the European Convention on Human Rights was not engaged. The law had not changed between offence and conviction; the appeal succeeded because there was no compelling basis under the domestic sentencing approach to depart from the starting point.

• Court of Appeal (Criminal Division): Allowed the sentencing appeal and substituted a 12-month supervision order for the detention and training order: [2004] EWCA Crim 2674.
• Inner London Crown Court: Following a guilty plea, imposed a 12-month detention and training order.