R v Joshua Gilligan

Although a serious group robbery involving an offensive weapon will ordinarily require immediate custody, a sentencing court must give adequate weight to exceptional and well-evidenced personal mitigation. Significant mental disability, emotional immaturity, vulnerability to peer pressure, genuine remorse, low risk of reoffending and a strong prospect of rehabilitation may make an immediate custodial sentence wrong in principle.

In such exceptional circumstances, a bespoke suspended custodial sentence with rehabilitative requirements may punish and deter while better securing reform and rehabilitation.

The appellant, aged 20 at sentence, pleaded guilty at the first opportunity to robbery, contrary to section 8(1) of the Theft Act 1968, and possessing an offensive weapon, contrary to section 1(1) of the Prevention of Crime Act 1953. He had robbed a 16-year-old pupil while wearing a balaclava and a knuckleduster, acting prominently within a group.

The Crown Court imposed 18 months’ detention, concurrent with four months for the weapon offence. The appellant appealed against sentence with the leave of the single judge. He relied on extensive documented autism, ADHD, depression, anxiety, PTSD, self-harm and suicidal ideation, together with youth, immaturity, remorse and vulnerability to adverse peer pressure.

The central issue was whether the judge had failed to treat those circumstances as strong personal mitigation when deciding whether immediate custody was inevitable.

1. Appeal allowed. The Court substituted an 18-month custodial sentence suspended for two years, with a 15-day rehabilitation activity requirement.

2. The categorisation of the robbery and the 18-month term were not challenged. Indeed, absent the appellant’s mental health difficulties, the Court regarded that sentence as lenient. The gravity of the robbery and its serious psychological effect on the teenage victim meant that an immediate custodial sentence would ordinarily have followed.

3. The Court nevertheless held that the sentencing judge gave inadequate weight to the appellant’s long-standing and independently verified mental disabilities. His youth, emotional immaturity, susceptibility to peer pressure, previous good character, genuine remorse, low assessed risk of reoffending and high prospect of rehabilitation formed an exceptional combination. Those matters were properly to be treated as strong personal mitigation.

4. The Court accepted the principle derived from R v Green (Jaiden) [2020] EWCA Crim 1709 that chronological age does not create a sentencing cliff edge. It emphasised, however, that the decisive feature was the unusual prominence and effect of the appellant’s mental disability, rather than youth alone.

5. In those exceptional circumstances, immediate custody was wrong in principle. A bespoke suspended sentence, coupled with rehabilitative intervention, could punish and deter while facilitating reform and rehabilitation. The Court explained that a further imprisonable offence during the suspension period could activate all or part of the suspended term.

• Court of Appeal (Criminal Division) — allowed the appeal against sentence and substituted a suspended 18-month custodial sentence: [2024] EWCA Crim 618.
• Crown Court — imposed a total of 18 months’ detention following guilty pleas to robbery and possession of an offensive weapon.