P, R v

In sentencing a child for grave offences, the court must assess culpability by reference to the offender’s actual role, maturity, intellectual functioning and background, as well as the seriousness and consequences of the offending. Equal sentences for co-offenders of different chronological ages may be justified where their functional maturity, culpability and shared conduct warrant that approach.

A custodial sentence must remain commensurate with the offences. It cannot be increased merely to provide structure or discipline. However, where the sentence is properly proportionate to exceptionally grave offending, its rehabilitative benefits and the youth justice aim of preventing further offending may support allowing it to stand.

The appellant, aged 13 when the offences were committed, and his 17-year-old brother deliberately started two fires in a derelict factory which they knew was occupied by rough sleepers and drug users. Two occupants died when a fire later took hold in the building.

Both were convicted at Stafford Crown Court of two counts of manslaughter and two counts of arson, being reckless as to whether life was endangered. At Birmingham Crown Court, Rafferty J imposed concurrent terms including six years’ detention for the manslaughter counts under Powers of Criminal Courts (Sentencing) Act 2000, section 91.

The appellant appealed his sentence, contending that there was unjustified disparity with his older brother and that the six-year term exceeded his criminal responsibility.

1. Appeal dismissed. The concurrent six-year detention sentence for the manslaughter counts was not manifestly excessive.

2. There was no objectionable disparity between the appellant’s sentence and that of his older brother. The sentencing judge was entitled to treat them equally after assessing their relationship, roles, culpability, intellectual functioning and severely dysfunctional shared background. Although their chronological ages differed, their social and intellectual functioning did not materially do so. The appellant played a full part in setting both fires, despite knowing that people lived in the factory and that gas cylinders were present.

3. The offending was exceptionally grave. The fires were deliberate and were started in premises known to be occupied. Two people died and others were placed at risk. The appellant’s extreme youth, low intelligence, neglectful upbringing and emotional deprivation were substantial mitigation, but did not render six years disproportionate.

4. The court accepted that a sentencing court must sentence for the offences and must not impose an excessive term merely to provide structure and discipline. It also accepted that preventing offending by children and young people is the principal aim of the youth justice system. Those principles did not justify reducing a sentence that was otherwise proper for the appellant’s serious criminality.

5. The court urged the responsible authorities, if possible, to keep the appellant at Red Bank, where he had made marked educational and behavioural progress, rather than transfer him to a young offender institution.

• Court of Appeal (Criminal Division): The appellant’s sentencing appeal was dismissed in [2009] EWCA Crim 1091.

• Crown Court: The appellant and his brother were convicted at Stafford Crown Court on 6 November 2008 of two counts of manslaughter and two counts of arson being reckless as to whether life was endangered. On 23 January 2009, Rafferty J at Birmingham Crown Court imposed concurrent detention terms, including six years’ detention on the manslaughter counts.