Practice and Procedure


PUBLISHED May 19, 2003

Where a defendant was 17 at the commission of an offence and 18 at the time of conviction, he should have received a sentence he was likely to have received if sentenced at the date of the commission of the offence. The sentence of 15 months would be quashed and a term of 12 months detention substituted.Appeal against sentence with leave of the single judge. On 10 December 2002 at Wolverhampton Crown Court the defendant ('J') pleaded guilty to unlawful wounding and on 9 January 2003 Recorder Evans sentenced J to 15 months detention in a Young Offender's Institution. On 20 July 2002 at 1 am, a 16 year old boy ('V') was about to leave a pub where he had been drinking. An argument broke out between V and another male. They both left the pub and carried on arguing, others joined in. J produced a knife and stabbed V in the stomach. J was arrested and accused the others of assaulting him but admitted stabbing V. He said that the knife was a small kitchen knife about six inches long which, he carried because the pub was notorious for trouble. When sentencing the Recorder pointed out that those who carried knives in public places, particularly pubs late at night, were inviting trouble and a custodial sentence was inevitable. J appealed against sentence on the grounds that R v Ghaffoor (2002) Crim LR 339 applied. As he was 17 at the time of committing the offence and 18 when he pleaded guilty, the starting point should have been the sentence he would have received if he had been sentenced on the date of the offence. The maximum sentence at the time of the offence was two years detention and training order ('DTTO'). A 15 month term was not available as DTTO relevant terms were either 12 or 18 months and as a result Art.7(1) ECHR had been breached. The court should also take into account the difference in regime between DTTO and a Young Offender's Institution.HELD: (1) R v Ghaffoor (supra) considered the position of defendants who had crossed the relevant threshold age between the date of offence and date of conviction. Dyson LJ held that the starting point was the sentence the defendant was likely to receive if he was sentenced at the date of the commission of the offence. As a result in approaching the sentencing exercise, the judge was obliged to have regard to s.101(1) and s.101(2) Powers of Criminal Courts (Sentencing) Act 2000. A term of 15 months was not specified in that section the only DTTO terms being 4, 6, 8, 10, 12, 18 or 24 months. (2) It was not clear whether the Recorder was conscious of the restrictions contained in s.101 of the 2000 Act. It is possible he may have had them in mind and applied a discount for a plea to give an 18 month sentence and then discounted further. However, it was not clear. (3) The proper approach was to substitute a term of 12 months in a Young Offender's Institution, bearing in mind the provisions of s.101. There was no need for the court to consider and make further allowances for the difference in regime between a DTTO and Young Offender's Institutions. Art 7 ECHR required the courts not to pass a more severe sentence but the regimes applicable were appropriately designed for the age of the individual subject to them. (4) The reasoning applied in R v Ghaffoor (supra) was well set out and the terms set out in s.101 were not necessarily to be regarded as a complete straight jacket.Judgment accordingly.

[2003] EWCA Crim 1609