R v Daniel Kovalkov

Where a sentencing appeal concerning an offender sentenced as a child raises a potentially material failure to follow the youth-sentencing approach, the appellate court should obtain sufficient current sentencing information before disposing of the appeal. Custody is a last resort for children and young persons. If the custody threshold is crossed, the court must consider a Youth Rehabilitation Order with Intensive Supervision and Surveillance and explain why it cannot be imposed.

Where a conclusive modern-slavery finding may bear on the offending, but its factual basis and connection with the offences are unclear, those details should be obtained before sentence is finally reconsidered.

The appellant pleaded guilty, while aged 16, to offences of being concerned in the supply of cocaine and cannabis and to two affrays. On 18 April 2023 he was sentenced, when aged 17, to 30 months’ detention for the cocaine offence, concurrent terms for the cannabis offence and one affray, and a consecutive 12-month term for the other affray.

He appealed with leave on the ground that insufficient regard may have been given to his age and personal circumstances under Part 10 of the Sentencing Act 2020. The court noted subsequent guidance in R v ZA [2023] EWCA Crim 596, the absence of adequate material about an adult community-based equivalent to a YRO with ISS, and an unexplained conclusive finding that he was a victim of modern-day slavery.

1. The appeal was not finally determined. It was adjourned and directed to be re-listed urgently before a Full Court after further information had been obtained.

2. The court considered that the sentencing judge appeared not to have focused on every part of the youth-sentencing guidance recommended by R v ZA [2023] EWCA Crim 596. A custodial sentence for a child or young person is a measure of last resort. Where the custody threshold is passed, the sentencing court must consider a YRO with Intensive Supervision and Surveillance and explain why it cannot be imposed.

3. The appellant had become 18 and could no longer receive a YRO with ISS. If the appeal succeeded and a non-custodial outcome were appropriate, the court lacked sufficient material to assess an adult equivalent, such as a Community Order with identified conditions. It therefore directed an addendum pre-sentence report within 28 days. The court expressly did not fetter the Full Court on whether the appeal should be allowed or on the appropriate disposal if it were allowed.

4. The existing report recorded a conclusive National Referral Mechanism finding that the appellant was a victim of modern-day slavery. The factual basis of that finding, and any relationship between it and the offences, were unclear. Since the finding might be relevant to sentence, the probation service was directed to obtain and provide the underlying information.

5. The appellant and respondent were directed to file updated written submissions after the addendum report. The challenge to the length of the Criminal Behaviour Order was not pursued.

• Court of Appeal (Criminal Division) — in [2023] EWCA Crim 1217, the court adjourned the sentence appeal for further reports and directed an expedited re-listing before a Full Court.
• Sentencing hearing — on 18 April 2023, His Honour Judge Levett DL imposed detention for drug-supply and affray offences.