Regina v Harley Kavanagh & Anor

When sentencing children and young persons, the seriousness of the offending should be reflected in the adult starting point and the adjustment for aggravating and mitigating factors. It should not obscure the separate need to give real weight to age, emotional and developmental maturity, welfare and the prevention of reoffending.

The indication that a sentence for a person aged 15 to 17 may be broadly half to two thirds of the adult sentence is a flexible guide. A judge departing from it must give cogent reasons that clearly address maturity. Criminal sophistication must not be treated as conflating seriousness with developmental maturity.

Two young appellants were convicted at St Albans Crown Court of conspiracies to rob and to cause grievous bodily harm with intent. The conspiracies involved planned attacks on persons believed to be drug dealers, including a sustained attack causing exceptionally serious injuries.

They received concurrent extended determinate sentences of 17 years, comprising 12 years’ detention and a five-year extended licence period. They appealed on the bases that the sentencing judge should not have found that they committed one of the attacks, and that insufficient allowance had been made for their youth and maturity.

1. The appeals were allowed in part. The court rejected the challenge to the sentencing judge’s factual finding that the appellants were the two assailants in the third attack. There was a strong and compelling circumstantial case. The judge, having heard the trial evidence, was well placed to make that finding to the criminal standard, and an appellate challenge to such a finding faces a high hurdle.

2. Paragraph 6.46 of the Sentencing Council’s children and young persons guideline gives a non-mechanical indication that a sentence for a person aged 15 to 17 may broadly be between one half and two thirds of the adult sentence. Emotional and developmental age and maturity are at least as important as chronological age when fixing the reduction from the adult sentence.

3. The court held that real weight must be given to the principal aims of sentencing children and young persons: preventing reoffending and promoting the individual’s welfare. Seriousness and culpability are ordinarily reflected first in the adult starting point and adjustments for aggravating and mitigating features. A judge who departs from the guideline must give cogent reasons, clearly explained by reference to emotional and developmental maturity.

4. The sentencing remarks did not adequately explain why the age discount was below one third. They gave rise to concern that criminal sophistication had improperly elided the distinct concepts of seriousness and developmental maturity. The pre-sentence and psychiatric material reinforced the need for a greater reduction.

5. The finding of dangerousness and the use of an extended sentence to protect the public were upheld. Each concurrent sentence was varied to 15 years, comprising ten years and eight months’ detention and an extended licence period of four years and four months.

• Court of Appeal (Criminal Division): Allowed the appeals against sentence to the extent of reducing and varying the extended determinate sentences; dismissed the challenge to the factual finding concerning the third attack.
• Crown Court at St Albans: On 29 October 2021, imposed concurrent extended determinate sentences of 17 years following convictions on 22 July 2021 for conspiracy to commit robbery and conspiracy to cause grievous bodily harm with intent.