Smith, R. v

In a sentence appeal, the question is whether the custodial term was manifestly excessive when assessed against all aggravating and mitigating circumstances. Youth and an autism spectrum disorder may materially reduce culpability and make custody more burdensome. They do not, however, remove significant culpability where an intellectually capable offender deliberately prepares a viable explosive device, intends serious injury, and acts in a public place. Sentencing comparisons require a fact-sensitive assessment. Guidance directed to terrorism offences is not determinative where the offending is not terrorism-related.

The appellant was convicted at the Central Criminal Court of possessing an explosive substance contrary to section 3(1)(b) of the Explosive Substances Act 1883. He had left a viable improvised explosive device on an Underground train. The device failed to detonate, although it was capable of causing serious injury.

On 26 May 2017, the trial judge imposed an extended sentence of 20 years' detention in a young offender institution, comprising 15 years' custody and a five-year extended licence period. The judge found the appellant dangerous. The appellant appealed, contending that the custodial term was manifestly excessive because of his youth, autism spectrum disorder, disability and vulnerability.

1. Appeal dismissed. The extended sentence was necessary and the dangerousness requirements were plainly met. The only live issue was whether the 15-year custodial term was manifestly excessive.

2. The offence was gravely aggravated. The appellant deliberately constructed a viable improvised explosive device over a period of weeks, activated its timing mechanism, and left it on a public Underground train carrying passengers. The device contained ball bearings and, but for an ignition failure, was capable of causing serious injury and damage. The jury’s verdict rejected his account that the device was merely a harmless hoax.

3. The court gave full weight to the appellant’s youth, previous good character, vulnerability and autism spectrum disorder. The disorder had affected his empathy and appreciation of the seriousness of his conduct, and therefore reduced culpability. It did not eliminate substantial culpability: he was intelligent, had researched fatal explosive incidents, and had no credible explanation for including ball bearings as destructive shrapnel.

4. Earlier sentencing decisions had to be approached on their facts. Guidance concerning terrorism offences was relevant as a comparison, but this was not a terrorism case. The court also noted that the sentence was markedly lower than might have been expected for a mature offender acting with a terrorist mindset and without the appellant’s condition.

5. The judge had adequately reflected the mitigating factors. The custodial term was not excessive and the sentence stood.

• Court of Appeal (Criminal Division) — dismissed the sentence appeal: [2018] EWCA Crim 528.
• Central Criminal Court — following conviction, imposed an extended sentence of 20 years' detention in a young offender institution on 26 May 2017.