AS, R v

In sentencing a child, seriousness remains the starting point, but the approach must be individualised and focused on the child rather than the offence. Custody is a sentence of last resort. The court must assess the offender’s awareness of the conduct and its consequences, and must give proper weight to emotional and developmental maturity, mental health conditions and learning disabilities.

A custodial sentence may remain unavoidable for grave and persistent offending. However, a sentence is excessive if those personal vulnerabilities, including susceptibility to peer influence and impaired appreciation of consequences, have not been sufficiently reflected in its length.

The appellant, aged 13 at the time, pleaded guilty to two kidnappings, robbery and assault occasioning actual bodily harm. The offences involved the detention, robbery and humiliation of two 11-year-old boys, one of whom was forced twice into a cold lake.

A Recorder imposed concurrent terms of 33 months’ detention under section 91 of the Powers of Criminal Courts (Sentencing) Act 2000. The appellant appealed against sentence, relying on ADHD, autistic spectrum disorder, very low cognitive ability, developmental immaturity and susceptibility to being led by peers. The issue was whether custody and the length of the detention properly reflected the youth sentencing guideline and the appellant’s individual circumstances.

1. Appeal allowed in part. Custody was unavoidable because of the grave offending, the serious harm caused, the appellant’s substantial role, his previous offending and the failure of earlier non-custodial orders. The Recorder was entitled to find that the appellant had prevented one victim from escaping.

2. The youth sentencing guideline requires an individualised assessment. Although seriousness is the starting point, the court must consider the child’s awareness of his actions and their consequences. It must also consider emotional and developmental maturity as well as chronological age, and any mental health problems or learning disabilities. Custody must always be a last resort.

3. The Recorder had generally applied the guideline correctly, but erred in fixing the term. He did not sufficiently account for the appellant’s ADHD, autistic spectrum disorder, cognitive deficits, vulnerability to being led by others and limited ability to recognise the consequences of his actions. He also treated the difference between the appellant and the older leading offender too much as a difference of one chronological year, rather than a materially greater developmental difference.

4. The terms of 33 months’ detention for kidnapping and robbery were quashed and replaced with concurrent terms of two years’ detention under section 91 of the Powers of Criminal Courts (Sentencing) Act 2000. A £30 statutory surcharge was imposed to correct the omission below.

• Court of Appeal (Criminal Division) — allowed the appeal to the extent of reducing the detention terms from 33 months to two years: [2019] EWCA Crim 1458.
• Crown Court — a Recorder imposed concurrent sentences of 33 months’ detention for kidnapping and robbery, with no separate penalty for assault occasioning actual bodily harm.