Leighton Findley v R

A community order under section 202(1) of the Sentencing Act 2020 is available only where the offender is aged 18 or over when convicted. Turning 18 before sentence does not cure ineligibility. An unlawful community order must be quashed on appeal. A youth rehabilitation order may be substituted where it reflects the sentencing judge’s intended lawful disposal and remains appropriate on the information before the appellate court. Section 11(3) of the Criminal Appeal Act 1968 prevents the appellate court from imposing a sentence more severe overall than that imposed below.

The applicant pleaded guilty, while under 18, to robbery, theft and two non-dwelling burglaries. He was sentenced by the Crown Court at Leicester on 26 January 2024, after turning 18, to concurrent three-year community orders with rehabilitation, unpaid work and curfew requirements, together with a surcharge.

He applied for leave to appeal out of time, arguing that the community orders were unlawful because he was under 18 when convicted. The Court also identified an error in the surcharge. The central issues were the legality of the sentence, the proper substitute disposal, and the limits on the appellate court’s sentencing powers.

The appeal was allowed to the extent stated. The extension of time was granted and leave to appeal was given.

1. Section 202(1) of the Sentencing Act 2020 makes a community order available only if the offender is aged 18 or over when convicted and the offence is punishable with imprisonment. The applicant had entered all his guilty pleas before reaching 18. The community orders were therefore unlawful and were quashed.
2. The surcharge was also quashed. The offences had been committed before the applicant reached 18, and the surcharge had been calculated on the basis applicable to an adult sentenced to a community order.
3. A youth rehabilitation order was the appropriate substitute. The offending crossed the custody threshold, but the sentencing judge had exceptionally chosen a non-custodial disposal because of the applicant’s age, lack of previous convictions, the influence of his father, his learning difficulties, significant psychological limitations, and the assessment that his risk could be managed in the community. The sentencing remarks showed that the judge would have imposed a youth rehabilitation order had he known the limits of his powers.
4. Later breaches and updated probation information cast doubt on whether a non-custodial sentence remained appropriate. Those breach proceedings were not before the Court, which had no jurisdiction to determine them. Section 11(3) of the Criminal Appeal Act 1968 also prevented the Court from substituting a sentence more severe overall than the sentence imposed below.
5. Having considered the later information, the applicant’s period in custody on remand and the competing risks of a longer order, the Court substituted concurrent youth rehabilitation orders for three years, each with a single supervision requirement. The surcharge was substituted with an order for £22.

• Court of Appeal (Criminal Division): Leave granted. The community orders and surcharge were quashed, and concurrent three-year youth rehabilitation orders with supervision requirements were substituted. [2024] EWCA Crim 1204.
• Crown Court at Leicester: The applicant was sentenced to concurrent three-year community orders with rehabilitation, unpaid work and curfew requirements, together with a surcharge.