M & Anor, R. v

A detention and training order under section 100 of the Powers of Criminal Courts (Sentencing) Act 2000 requires the offender to be a persistent offender. An appeal court may uphold the order where the sentencing judge did not state that finding expressly but was entitled to make it on the antecedents.

Sentence must nevertheless reflect the offender’s age, role, plea and personal circumstances. Custody may be appropriate for a sustained group assault involving kicking, but its length must remain proportionate to those matters.

M and KM pleaded guilty at the Crown Court at Burnley to assault contrary to section 47 of the Offences Against the Person Act 1861. KM also pleaded guilty to theft. The victim, aged 16, was punched and kicked during a sustained assault; KM then took property from her handbag.

M was 14 at the time of the offence and had previous offending. KM was 19, had played a lesser part in the assault, and had committed the theft. On 30 April 2008, M received a 12-month detention and training order and KM received ten months’ detention, with three months concurrent for theft.

The applicants sought leave to appeal against sentence. The central issues were whether custody was justified and whether the terms imposed were excessive.

1. Leave was granted and both appeals against sentence were allowed. The custodial sentences were reduced. M’s detention and training order was substituted with an order of six months. KM’s sentence for assault was substituted with six months’ detention; the concurrent three-month sentence for theft remained.
2. The assault passed the custody threshold. It was a sustained attack by two offenders, including punches and kicks. For M, the court considered that a detention and training order remained appropriate despite her young age, having regard to her antecedents and the nature of the attack.
3. Section 100 of the Powers of Criminal Courts (Sentencing) Act 2000 required M to be a persistent offender before a detention and training order could be made. Although the Recorder had not expressly made that finding, the Court of Appeal was satisfied that M’s antecedents entitled him to do so. The Recorder should, however, have raised the issue with counsel before sentencing.
4. The original periods were excessive. M’s age required a materially shorter term. KM was substantially older and custody was properly conceded to be justified, but she had played the lesser part in the assault. Her theft and late plea were relevant countervailing factors. Balancing those matters, six months was the proper term for the assault.
5. The existing reporting restriction protecting M’s identity was continued.

• Court of Appeal (Criminal Division) — by [2008] EWCA Crim 1249, granted leave and allowed the appeals against sentence, substituting shorter custodial terms.
• Crown Court at Burnley — on 30 April 2008, sentenced M to a 12-month detention and training order and KM to ten months’ detention for assault, with three months concurrent for theft.