Thomas, R. v

Where an offender crossed the age-18 threshold between the offence and sentence, the court should begin with the sentence likely to have been imposed when the offence was committed. It must also take account of the adult purposes of sentencing.

A substantial disparity with younger co-offenders may justify appellate intervention where a right-thinking member of the public would conclude that something had gone wrong in the administration of justice. A small age difference may justify some differential treatment, but not a disproportionate adult sentence created principally by the timing of court hearings.

The appellant was 17½ when he joined a group which surrounded the complainant. Other members inflicted serious violence. He pleaded guilty to threatening behaviour contrary to section 4 of the Public Order Act 1986.

After his eighteenth birthday, the Crown Court at Cardiff imposed an 18-month community order with rehabilitation and attendance-centre requirements. The younger co-offenders were remitted to the Youth Court and received referral orders, including three-month orders for those convicted of the same section 4 offence.

The appeal challenged the resulting disparity, which arose from the appellant’s age and the timing of the hearings.

1. Appeal allowed to the extent of varying the sentence. The court held that the appellant’s eighteenth birthday created an unusual sentencing cliff edge. Although the guidance on age at conviction did not apply exactly, its message was applicable: the starting point should be the sentence equivalent to that likely to have been imposed when the offence was committed.

2. The appellant’s position as the oldest participant justified a somewhat more severe sentence than that imposed on younger co-offenders. But the three-month age difference between him and one co-offender, and the accident of hearing dates, did not justify the marked disparity produced by an adult community order.

3. Applying the disparity question in R v Fawcett (1983) 5 Cr App R(S) 158, the court asked whether a right-thinking member of the public would consider that something had gone wrong in the administration of justice. The substantially more onerous order imposed for the lesser section 4 offence, when compared with the youth disposals, required correction.

4. The appellant’s positive compliance showed that he had already achieved much of the support, guidance and rehabilitative work that a referral order would have provided. The community order was reduced from 18 to nine months; the rehabilitation activity requirement was reduced from 20 to ten days; and the attendance-centre requirement was quashed. The victim surcharge was reduced from £85 to £20, the sum applicable because he was under 18 when the offence was committed.

• Court of Appeal (Criminal Division): Allowed the appeal to the extent of reducing and varying the community order imposed below.
• Crown Court at Cardiff: On 19 December 2019, imposed an 18-month community order for threatening behaviour, with rehabilitation activity and attendance-centre requirements, and an £85 victim surcharge.