Attorney General's Reference Nos. 143 and 144 of 2006

Where co-offenders of substantially equal culpability commit a murder together, different Criminal Justice Act 2003 Schedule 21 starting points arising solely from their ages must not be applied mechanistically. The sentencer should adjust from each starting point so that any disparity in minimum terms fairly reflects the difference in age.

A murder during a planned robbery in which a knife was carried for escalating use, coupled with associated knife robberies, may justify a substantial increase from the youthful-offender starting point. A sentence for unlawful wounding must not exceed the five-year statutory maximum.

Brown and Carty took part in a series of violent robberies involving knives. They jointly robbed and fatally stabbed Tom Ap Rhys Pryce. The prosecution could not prove which offender delivered the fatal blows, but both participated in the knife attack intending at least serious injury.

At the Central Criminal Court, Aikens J imposed life detention with a 21-year minimum term on Carty, who was just over 18, and detention during Her Majesty's pleasure with a 17-year minimum term on Brown, who was 17. Both offenders appealed their minimum terms. The Attorney General referred the sentences under section 36 of the Criminal Justice Act 1988, contending that they were unduly lenient.

The common issue was how Schedule 21 starting points should operate for jointly culpable offenders on opposite sides of the age of 18.

1. Disposition. The court dismissed both offenders’ appeals against their minimum terms. It held that Brown’s 17-year minimum term was unduly lenient on the Attorney General’s reference and increased it to 20 years. Carty’s 21-year minimum term was neither manifestly excessive nor unduly lenient.
2. The six-year extended sentences for unlawful wounding were unlawful because the maximum sentence under section 20 of the Offences against the Person Act 1861 was five years. The court quashed them and substituted extended sentences of four years’ detention, comprising two years’ custody and a two-year extension period. This did not affect the time either offender would serve.
3. Schedule 21 supplied different starting points because Carty was just over 18 and Brown just under 18. That statutory difference did not require independently determined and widely divergent minimum terms for co-offenders whose culpability was the same. Following R v Peters [2005] EWCA Crim 605 and R v Taylor and Thomas [2007] EWCA Crim 803, the court held that the sentencer must move from each starting point to terms whose disparity is no more than a fair reflection of their age difference. Here it could not properly exceed one year.
4. The murder was particularly serious. The offenders had taken a knife intending it to be used, contemplated increasingly serious injury if a victim resisted, and had committed earlier violent gang robberies involving knife wounds. Those matters were substantial aggravation. Brown’s youth and the absence of proof of an intent to kill did not prevent a substantial uplift from the 12-year starting point. A 20-year minimum term properly reflected the overall seriousness.

• Court of Appeal (Criminal Division): Brown’s and Carty’s sentence appeals were dismissed. On the Attorney General’s reference under section 36 of the Criminal Justice Act 1988, Brown’s minimum term was increased from 17 to 20 years.
• Central Criminal Court: Aikens J sentenced Carty to custody for life with a 21-year minimum term and Brown to detention during Her Majesty’s pleasure with a 17-year minimum term.