R v Alfie Ferguson & Ors

In sentencing young offenders for murder, the lower starting point under Sentencing Act 2020, Schedule 21 reflects youth to a substantial extent, but the court retains a wide discretion to adjust the minimum term for aggravating and mitigating features. Rehabilitation, prevention of further offending and welfare are the primary purposes of sentencing children. A defendant who has only just reached 18 should not face a sentencing cliff edge; any disparity with younger co-defendants must fairly reflect the age difference and their respective roles.

Taking a knife to the scene remains a powerful aggravating feature. Lack of remorse is not itself an aggravating factor, although genuine remorse may mitigate sentence. An error in describing lack of remorse as aggravating will not justify intervention unless it materially affected the minimum term.

Four young men were convicted at the Central Criminal Court of the joint-enterprise murder of a 17-year-old who was fatally stabbed during a planned gang ride-out. Three appellants were under 18 at the time of the offence. The fourth had turned 18 one week earlier. Each received a life sentence or detention at His Majesty’s pleasure with a minimum term between 17 and 22 years.

Ferguson, Bartley and Decordova appealed their minimum terms. Benitez applied out of time for leave to appeal; the court granted both the extension and leave. The appeals raised the treatment of youth and maturity, relative roles in the attack, disparity between closely aged offenders, the effect of past trafficking material, and whether lack of remorse could aggravate sentence.

1. All four sentence appeals were dismissed. Benitez’s extension of time and leave to appeal were granted, but his appeal was dismissed.
2. The court applied Schedule 21 of the Sentencing Act 2020 as it stood when the appellants were convicted. The starting point for the three children was 12 years; for Decordova, who was an adult at the time of the murder, it was 25 years. Youth had already been substantially reflected in those starting points, but the sentencing judge retained a broad evaluative discretion. The primary purposes in sentencing children were rehabilitation, prevention of further offending and welfare.
3. The court held that an offender only just over 18 should not be treated as having crossed a sentencing cliff edge. Following the approach in R v Clarke [2018] EWCA Crim 185, any disparity between closely aged defendants had to reflect fairly their age difference and their respective culpability. Taking knives to a planned attack was a very significant aggravating feature.
4. The judge had erred by listing lack of remorse as an aggravating factor. It was not a statutory aggravating factor and, ordinarily, its absence could not aggravate sentence. Genuine remorse could mitigate. The error did not materially affect any of the minimum terms.
5. Ferguson was the stabber, had brought the knife, had relevant previous convictions and glorified the killing afterwards. His 22-year minimum term was within the permissible range. Bartley was close to Ferguson, armed, and part of the plan. The previously undisclosed trafficking material did not bear on this later, non-drug-related offending; his 19-year minimum term was not manifestly excessive.
6. Benitez played the least substantive role, acting from a distance on his bicycle as lookout, but his 17-year minimum term properly reflected his participation. Decordova’s role was more substantive than Benitez’s, including active engagement with the victim and central involvement in the joint enterprise. His 20-year minimum term fairly reflected that role and his slightly greater age.

• Court of Appeal (Criminal Division) Granted Benitez an extension of time and leave to appeal, then dismissed all four appeals against minimum terms.
• Central Criminal Court The appellants were convicted of murder on 13 May 2022 and sentenced by Her Honour Judge Dhir KC to life sentences or detention at His Majesty’s pleasure with minimum terms of 17 to 22 years.