R v Freddie Alexander Valencia

A sentence is unduly lenient only where it falls outside the range that a judge, taking account of all relevant factors, could reasonably regard as appropriate. For a child or young person, the custody threshold requires assessment of the offence’s seriousness, the harm caused or likely to be caused, and the risk of future serious harm. A pre-sentence report must be considered. If custody is the only appropriate sentence, the court may use the equivalent adult guideline to assess length, while making an individual reduction for age, maturity and development. An individualised approach to youth sentencing remains essential, but it cannot justify a non-custodial sentence where the gravity of the offending makes custody unavoidable.

The offender, aged 17 when sentenced, pleaded guilty in the Crown Court at Woolwich to causing grievous bodily harm with intent, possession of a bladed article, affray and drugs offences. During a drug transaction he chased and repeatedly stabbed the victim with a large knife, causing grave and lasting injuries. He had also supplied cannabis over several months and possessed MDMA with intent to supply.

The Crown Court imposed a two-year youth rehabilitation order with intensive supervision and surveillance. The Solicitor General sought leave under section 36 of the Criminal Justice Act 1988 to refer the sentence as unduly lenient. The central issues were whether the offences required immediate custody under the Children guideline and, if so, whether the court should replace the order despite the offender’s youth, progress and history of exploitation.

1. The reference succeeded. The court granted leave, held that the youth rehabilitation order was unduly lenient, quashed it and substituted concurrent detention sentences totalling four years.

2. The applicable test was that stated in Attorney General's Reference No 4 of 1989 [1990] 1 WLR 41. A sentence is unduly lenient when it is outside the range reasonably open to a judge who has considered all relevant factors. The question was therefore whether a non-custodial sentence could reasonably have been imposed.

3. Under paragraph 6.44 of the Children guideline, the seriousness of the offence, harm caused or likely to be caused, and future risk of serious harm had to be assessed. The victim suffered very significant harm. The pre-sentence report also assessed the offender as presenting a significant risk of serious harm through further violence. Custody was therefore unavoidable.

4. Once that preliminary conclusion had been reached, the sentencing judge should have consulted the equivalent adult guidelines. The court placed the principal offence in Category 2A. It identified high culpability through use of the knife and the offender’s leading role, grave harm, and further aggravation from the connected offending. An adult starting point of seven years, with an uplift, was appropriate before reductions.

5. For a 15–17-year-old, a sentence broadly between one half and two thirds of the adult sentence may assist, but must not be applied mechanically. Maturity and developmental age are at least as important as chronological age. Applying two thirds, then the preserved 20 per cent guilty-plea reduction, produced a sentence of four years.

6. The court recognised its discretion not to interfere after finding undue leniency. However, the sentencing judge had wrongly treated the pleas as made at the outset and gave little-weight matters undue significance. The modern-slavery decision was also of little weight on the facts. The seriousness of the offending required immediate custody notwithstanding the offender’s youth and recent progress.

7. The substituted sentences were four years’ detention for causing grievous bodily harm with intent, six months for supplying cannabis and 12 months for possession of MDMA with intent to supply, all concurrent. No separate penalty was imposed for the bladed-article offence or affray.

• Court of Appeal (Criminal Division): In [2023] EWCA Crim 1683, the court granted leave under section 36 of the Criminal Justice Act 1988, held the sentence unduly lenient, quashed the youth rehabilitation order and substituted four years’ detention.

• Crown Court at Woolwich: On 18 September 2023, the offender received a two-year youth rehabilitation order with intensive supervision and surveillance for all counts concurrently.