PS v R.

When sentencing an offender with a mental disorder or learning disability, the court must assess its effect on culpability at the time of the offence and its effect on the sentence at the time of sentencing. The assessment is individual and may justify substantial movement within, or into a lower, guideline range. Sentencers should explain that movement.

For children, sentencing must focus on welfare, rehabilitation, developmental maturity and the likely impact of custody. Adult offence-specific guidelines are not to be applied mechanically. In a joint-enterprise murder, an accomplice’s intention to kill cannot be inferred merely because the person who inflicted the fatal injury intended to kill.

This combined sentencing judgment concerned three otherwise unrelated appellants with autism or other mental disorders.

PS, aged 14 when involved in a joint-enterprise murder and associated stabbings, sought an extension of time and relied on fresh evidence diagnosing Autism Spectrum Disorder and ADHD. Abdi Dahir appealed a 14-year sentence for causing grievous bodily harm with intent, relying on evidence of complex PTSD and related disorders. CF, aged 15 and 16 when he committed sexual offences against younger children, appealed concurrent five-year detention terms, contending that insufficient weight had been given to his autism, cognitive limitations and youth.

The central issue was the proper approach to culpability and sentence length where mental health conditions or developmental disorders affect an offender.

1. All three sentencing challenges succeeded. PS’s applications for an extension of time and leave to appeal were granted. His fresh expert evidence was admitted, his 14-year minimum term was quashed and a 10-year minimum term substituted. Dahir’s sentence was reduced from 14 to 10 years. CF’s concurrent five-year detention terms on counts 1 and 2 were reduced to concurrent terms of two years and six months.

2. Under section 143(1) of the Criminal Justice Act 2003, culpability and harm must be considered. Mental disorder may reduce culpability where it impairs judgment, rational choice, understanding of consequences, self-control or resistance to influence. Its effect at the time of sentence may also increase the impact of custody and provide personal mitigation. The court must make an individual assessment, assisted where appropriate by properly focused pre-sentence, psychiatric or psychological reports.

3. PS should not have been sentenced on the basis that he intended to kill merely because the co-defendant who inflicted the fatal injury did so. In a joint enterprise, participation in murder may rest on an intention to cause really serious injury. That mitigating factor, together with the newly established autism and ADHD which significantly reduced PS’s culpability, rendered the original minimum term manifestly excessive.

4. Dahir’s mental disorder linked to the offence was a lower-culpability factor. It did not require the offence to be placed in a lower guideline category, but it required a significant downward movement from the category 1 starting point. The sentencing judge had given insufficient weight to that factor and to the substantial personal mitigation.

5. For CF, the youth-sentencing guidelines required an individualised, rehabilitation-focused assessment. His autism, intellectual limitations, developmental maturity and exceptional vulnerability in custody were material both to culpability and to the impact of detention. The adult guideline could not be reduced by a mechanical fraction. Nor were children aged five or six of “extreme youth” for the purpose of an offence which can only be committed against a child under 13. The restraining order remained unchanged.

• Court of Appeal (Criminal Division) — In [2019] EWCA Crim 2286, the court granted PS an extension of time and leave to appeal, admitted fresh evidence, and reduced his minimum term. It allowed the sentence appeals of Dahir and CF and substituted reduced custodial terms.
• Crown Court — PS was sentenced at the Central Criminal Court to detention at Her Majesty’s pleasure with a 14-year minimum term. Dahir was sentenced at Isleworth Crown Court to 14 years’ imprisonment. CF was sentenced at Leeds Crown Court to concurrent five-year detention terms under section 91 of the Powers of Criminal Courts (Sentencing) Act 2000. No lower-court citation was stated.