R v Marley Clarke

Where a defendant crosses a relevant age threshold between committing an offence and being sentenced, the sentence likely to have been imposed at the time of the offence is the starting point. It is not determinative. The court must still assess the seriousness of the offending and may impose custody where the custody threshold is crossed, while giving proper weight to age and mitigation. Disparity with a co-defendant sentenced in the Youth Court does not itself establish unfairness. A reasonable observer may understand different outcomes where the different sentencing forum resulted from a defendant’s decision to maintain a not guilty plea until trial.

This was an appeal against sentence from the Crown Court at Birmingham. The appellant committed violent disorder and possessed an offensive weapon when aged 16. He pleaded guilty on the day fixed for trial, by which time he was 18, and received concurrent suspended custodial sentences. He argued that a community order was appropriate because of his age at the time of the offences and that his sentence was unfairly disparate from a co-defendant’s Youth Court Referral Order after an earlier guilty plea.

The central issue was whether the custodial sentence was wrong in principle or manifestly excessive.

The appeal against sentence was dismissed. The court found no error of principle and no manifest excess.

1. Age at the date of the offence. Applying the guidance in R v Ghafoor [2002] EWCA Crim 1857, which had been approved in R v Ahmed [2023] EWCA Crim 281, the sentence likely to have been imposed when the offence was committed is the starting point where the defendant crosses an age threshold before sentence. A non-custodial sentence might therefore have been the starting point when the appellant was 16, but it was only a starting point.
2. Seriousness and custody. The appellant had played a significant role in serious violent disorder. The offence passed the custody threshold. The sentencing judge was entitled to mark that seriousness with custody, while taking account of the appellant’s age, subsequent maturation and other mitigation. The judge was also entitled to suspend the custodial sentence following the required balancing exercise.
3. Disparity. The difference between the appellant’s sentence and the co-defendant’s Referral Order did not demonstrate unfairness. The appellant had been able to plead guilty at the plea and trial preparation hearing but maintained a not guilty plea until the day of trial. That tactical decision was the sole reason he was sentenced in the Crown Court rather than the Youth Court. R v Thomas [2020] EWCA Crim 822 was materially distinguishable because the disparity there resulted simply from one defendant coming of age during the proceedings.
4. The court directed that the record be amended to describe the sentence as a suspended sentence of detention in a young offender institution, rather than a suspended sentence of imprisonment.

• Court of Appeal (Criminal Division) — On an appeal against sentence by leave of the single judge, the appeal was dismissed. The court directed amendment of the sentence record. [2025] EWCA Crim 1780
• Crown Court at Birmingham — On 25 April 2025, the appellant was sentenced to concurrent suspended custodial sentences for violent disorder and possessing an offensive weapon.