R v Archie Musgrove

Where relevant evidence identifies a mental disorder, developmental disorder or neurological impairment, the sentencing court must engage with the applicable guideline. It must assess whether there is a sufficient connection between the condition and the offending to reduce culpability, and consider whether custody may have an increased impact. The sentencer must make the final assessment, but must consider relevant expert evidence. Expert opinion should be rejected only for compelling reasons, which must be stated. The sentencer must also state whether culpability was reduced and the reasons and extent of any reduction. Failure to undertake that assessment may render a sentence wrong in principle or manifestly excessive.

The appellant pleaded guilty in the Crown Court at Reading to 16 blackmail offences involving 54 victims, with 38 similar offences taken into consideration. He received concurrent sentences of 40 months’ custody in a young offenders’ institute. The sentencing judge accepted that he had a gambling disorder but treated gambling as a voluntary activity and did not engage with the applicable guideline for offenders with mental disorders. The appeal concerned whether the judge had failed to assess the disorder’s effect on culpability and the impact of custody, and whether the sentence was wrong in principle or manifestly excessive.

1. Appeal allowed. The Court of Appeal quashed the concurrent sentences of 40 months and imposed concurrent sentences of three years’ detention in a young offenders’ institute.
2. The psychological evidence described the appellant’s gambling disorder as severe and as significantly affecting his thinking, behaviour, rationality and control. His ADHD was also relevant to the assessment of his neurodiversity. The sentencing judge accepted that he had a gambling disorder, but appeared to distinguish it from drug addiction because gambling involved choice. The judge also appeared to overlook the appellant’s voluntary attendance at peer-support sessions.
3. The applicable guideline required the sentencing judge to consider whether there was a sufficient connection between the impairment or disorder and the offending behaviour to reduce culpability. The judge also had to consider whether the condition might increase the impact of imprisonment.
4. Relevant expert evidence had to be considered. The sentencer retained responsibility for deciding culpability and was not bound by expert opinion, but the court found no compelling reason to reject the psychologist’s assessment. The sentencer also had to state clearly whether culpability was reduced, the reasons for and extent of any reduction, and, where appropriate, the reasons for not following expert evidence.
5. Although the judge had reduced the sentence to reflect gambling and other mitigation, the judge had failed properly to engage with the guideline and had given insufficient reduction for the appellant’s neurodiversity and addiction. That was an error in principle.
6. The notional sentence after trial was reduced by a further six months, from 60 months to 54 months, before applying the one-third reduction for guilty pleas. The resulting sentence was 36 months on each count, to run concurrently. The sentence was to be recorded as detention in a young offenders’ institute.

1. Court of Appeal (Criminal Division): Allowed the sentence appeal, quashed the concurrent 40-month sentences and imposed concurrent three-year sentences of detention in a young offenders’ institute.
2. Crown Court at Reading: Following guilty pleas to 16 blackmail offences, imposed concurrent sentences of three years and four months, taking 38 similar offences into consideration.