R v Daniel Kovalkov

For an offender under 18, detention exceeding the two-year maximum for a detention and training order is available under the Sentencing Act 2020 only for an offence carrying a maximum sentence of at least 14 years. Affray does not qualify. A detention and training order cannot be made consecutive to section 250 detention on the same sentencing occasion. Where qualifying and non-qualifying offences are sentenced together, the court should impose detention under section 250 for the qualifying offences alone, with no separate penalty for the remainder. Youth sentencing requires a stepped approach, treating custody as a last resort. The offending passed the custody threshold, but the sentence imposed was unlawful and manifestly excessive.

The appellant, aged 17 at sentence, pleaded guilty to supplying cocaine and cannabis and to two affrays. Ipswich Crown Court imposed an aggregate sentence of 42 months’ detention, comprising detention under the Sentencing Act 2020 for the drug offences and consecutive or concurrent custodial terms for the affrays.

On appeal, the issues were whether the sentences were lawful, whether custody was required rather than a youth rehabilitation order, and whether the total sentence was manifestly excessive. The Court also considered the significance of fuller material concerning the appellant’s exploitation and immaturity.

1. Appeal allowed. The aggregate sentence of 42 months was unlawful and manifestly excessive. The appellant was 17 at conviction, so a sentence in a young offender institution was unavailable. The drug offences qualified for detention under section 250 of the Sentencing Act 2020, but affray did not. Custodial sentences for the affrays therefore had to be detention and training orders.
2. Section 237(4) of the Sentencing Act 2020 permits a detention and training order to run consecutively to section 250 detention only where the offender is already subject to, and actually serving, the section 250 sentence. It does not permit both forms of sentence to be imposed consecutively at the same hearing.
3. The established approach in R v Robinson [2020] EWCA Crim 866 applied. Where qualifying and non-qualifying offences are sentenced together, section 250 detention should reflect the seriousness of all the offending but be imposed only for the qualifying offences. No separate penalty should be imposed for the non-qualifying offences. Consecutive detention and training orders were lawful under section 238(1), provided their aggregate did not exceed two years.
4. Fuller information about the National Referral Mechanism decision and the appellant’s exploitation meant that his role in the drug offences was properly assessed as lesser rather than significant. The appropriate adult starting point was three years. After the reduction for youth and credit for guilty pleas, the proper drug sentence was 18 months. That period did not justify section 250 detention, for which a term of at least two years would normally be required.
5. The stepped approach to youth sentencing described in R v AZ [2023] EWCA Crim 596 required consideration of general youth sentencing principles before applying the guideline’s age-related reduction. Custody remained a last resort. Nevertheless, these serious offences passed the custody threshold, and it was not wrong in principle to impose custody rather than a youth rehabilitation order.
6. The sentences were quashed and replaced with 18 months’ detention and training order for the cocaine offence, 12 months concurrent for the cannabis offence, and six months concurrent for each affray, consecutive to the drug sentence. The total was two years. The appellant was entitled to credit for 153 days spent on an electronically monitored qualifying curfew.

• Court of Appeal (Criminal Division) — [2023] EWCA Crim 1509: appeal against sentence allowed. The original sentences were quashed and substituted with an aggregate two-year detention and training order.
• Ipswich Crown Court — On 18 April 2023, the appellant was sentenced to an aggregate 42 months’ detention after pleading guilty. No citation is stated in the judgment.