R v Dylan Davies

Where an offender was a child when the offence was committed but has crossed an age threshold by conviction or sentence, the court should begin with the sentence likely to have been imposed at the date of offending. It will rarely be appropriate to impose a sentence exceeding the maximum then available.

A child with only one earlier offence is a repeat offender, not a persistent offender. Two different offences arising from one overall incident do not constitute a series of separate, comparable offences for the persistent-offender guidance. An unavailable custodial sentence must therefore be quashed.

The appellant was aged 14 when, during a group attack, the victim sustained life-threatening stab wounds. He was convicted at Aylesbury Crown Court of wounding contrary to section 20 of the Offences Against the Person Act 1861 and affray contrary to section 3(1) of the Public Order Act 1986.

Although aged 18 when sentenced, he had been 14 at the date of the offences. The Crown Court imposed concurrent terms of two years’ detention in a young offender institution after treating him as a persistent offender. The appeal concerned whether one prior caution and two offences within a single incident could justify that classification, and the proper substituted sentence after most of the custodial term had been served.

1. Appeal allowed. The concurrent two-year detention sentences were quashed. Concurrent sentences of five months’ detention in a young offender institution were substituted, entitling the appellant to immediate unconditional release.
2. The Guideline on Sentencing Children and Young People required the court to start with the sentence likely to have been imposed when the appellant was 14. Since the offences were not grave crimes within section 250 of the Sentencing Code, custody was unavailable unless he was a persistent offender. The ordinary maximum was therefore a non-custodial youth rehabilitation order.
3. The appellant’s single earlier caution could not make him a persistent offender. The court followed R v M [2008] EWCA Crim 3329: a person offending for the second time may be a repeat offender, but is not thereby persistent. The two current offences formed different aspects of one overall incident. They were not a series of separate, comparable offences committed over a short period, so paragraph 6.8 of the Guideline did not apply.
4. The sentencing judge had understandably sought to reflect the seriousness of the offending and injury. However, the applicable child-sentencing framework did not permit the custodial sentence imposed. As the appellant had already served most of that unlawful custodial term, a new community order would impose further punishment. The practical course was to reduce the custodial term to time already served. The court noted that a similar course had been taken, on different facts, in R v ZA [2023] EWCA Crim 596.

• Court of Appeal (Criminal Division): Allowed the sentence appeal and substituted concurrent five-month detention sentences: [2023] EWCA Crim 1215.
• Crown Court at Aylesbury: Convicted the appellant on 8 December 2022 and, on 21 February 2023, imposed concurrent terms of two years’ detention in a young offender institution.