McKenzie, R. v

Where an offender was under 18 when offending but over 18 when sentenced, the court must start with the sentence likely to have been imposed at the offence date, while considering the purposes of adult sentencing. It is rarely appropriate to exceed the maximum then available. That does not mean that a detention and training order is necessarily suitable: a grave offence may justify custody under section 91 of the Powers of Criminal Courts (Sentencing) Act 2000. Lower culpability factors such as coercion and a subordinate role cannot erase significant higher culpability features. A community order for a Category 1 aggravated burglary was unduly lenient, and was replaced by three-and-a-half years’ detention in a young offender institution.

The offender was aged 16 years and 9 months when he participated in an aggravated burglary. He was convicted after trial and, when aged 18 or 19, received a two-year community order with unpaid work and rehabilitation requirements. The Attorney General referred the sentence under section 36 of the Criminal Justice Act 1988 as unduly lenient. The central issues were the proper adult sentencing assessment, the effect of crossing the age of 18 before sentence, whether section 91 of the Powers of Criminal Courts (Sentencing) Act 2000 applied, and whether a non-custodial sentence was justified.

The reference succeeded. The court granted leave under section 36 of the Criminal Justice Act 1988, quashed the community order and substituted three-and-a-half years’ detention in a young offender institution.

1. Adult culpability. The aggravated burglary was a Category 1 offence. It involved night-time entry into a home occupied by a woman and child, physical violence, a group equipped for burglary and a firearm. The offender’s subordinate role, possible coercion and previous good character reduced culpability, but could not effectively eradicate the higher culpability features. The appropriate adult sentence was nine years’ imprisonment, at the bottom of the Category 1 range.
2. Crossing the age threshold. Where an offender was under 18 when offending but had reached 18 by sentence, paragraph 6.2 of the Definitive Guideline on Sentencing Children and Young People required the starting point to be the sentence likely to have been imposed at the offence date, while having regard to the purposes of sentencing adults. Separately, R v Ghafoor [2002] EWCA Crim 1857 and paragraph 6.3 established that it would rarely be appropriate to impose a sentence more severe than the maximum available at the offence date.
3. Section 91. Because aggravated burglary carried life imprisonment, section 91 of the Powers of Criminal Courts (Sentencing) Act 2000 was engaged. The sentencing judge erred in treating a detention and training order as suitable despite the gravity of the offence. A substantial custodial sentence, assessed at about four years’ detention in a young offender institution, was likely to have been imposed under section 91 at the offence date. The relevant comparison was therefore not limited to the two-year detention and training order maximum.
4. The court took full account of the offender’s age and immaturity, mitigation, role as his mother’s carer, delay and the impact of the pandemic on custody. The substituted sentence was three-and-a-half years’ detention in a young offender institution. The offender was directed to surrender to custody by 1 pm on 17 December 2020, and the sentence was to run from surrender.

1. Crown Court: Following conviction for aggravated burglary, the offender received a two-year community order with unpaid work and rehabilitation requirements.
2. Court of Appeal (Criminal Division): On the Attorney General’s reference under section 36 of the Criminal Justice Act 1988, leave was granted. The sentence was held to be unduly lenient, quashed and replaced with three-and-a-half years’ detention in a young offender institution: [2020] EWCA Crim 1776.