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The new sentencing guideline for children and young people
7 Apr 2017
Mark Allison of 1 Pump Court summarises the changes brought about by the new guideline on sentencing children and young people which is due to come into force on 1 June 2017 (https://www.sentencingcouncil.org.uk/wp-content/uploads/Sentencing-Children-and-young-people-Definitive-Guide_FINAL_WEB.pdf).
Mark is a pupil barrister within Chambers that specialises in criminal defence and immigration law. He previously worked in private practice as an immigration solicitor and in the Magistrates’ Court as a Legal Adviser. He will be available to accept instructions from 13 April 2017.
On 7 March 2017, the Sentencing Council published ‘Sentencing Children and Young People: Overarching Principles’. This will come into force on 1 June 2017, replacing the Sentencing Guidelines Council’s ‘Overarching Principles – Sentencing Youths’ published in November 2009. Whilst ‘youths’ have become ‘children and young people’, there are some more significant changes. However, in total, it represents a modest evolution from the 2009 SGC definitive guideline.
General approach to sentencing
Youth courts must continue to have regard to the principal aim of prevention and the welfare of the offender. However, the emphasis on proportionality in the 2009 guideline appears to have been significantly diluted. Paragraph 1.2 provides that:
“While the seriousness of the offence will be the starting point, the approach to sentencing should be individualistic and focused on the child or young person, as opposed to offence focused.”
Paragraph 1.9 confirms that “[a]ny restriction on liberty must be commensurate with the seriousness of the offence”. Proportionality therefore remains the critical factor where the sentence includes punitive elements, but courts have more flexibility to respond to a young person’s circumstances where the focus is on rehabilitation. Paragraph 1.2 is perhaps most significant in relation to the custody threshold; the guideline allows courts quite a wide discretion in determining whether custody is unavoidable, whether or not there is a specific offence guideline (see below). An approach to sentencing, which is focused on the offender rather than the offence and uninfluenced by adult guidelines with prescriptive sentence ranges may well allow greater flexibility to respond to the individual circumstances of a young person. However, there is a danger that it may also produce greater inconsistency.
Background of the young offender
The 2009 guideline listed various factors related to the offending youth’s background that are regularly encountered, as well as a narrower range of factors to be considered in the welfare assessment. The new guideline provides a much more expansive consideration of factors which should be considered by the sentencing court in assessing welfare. These include the over-representation in the criminal justice system of young people in care and from black and ethnic minority backgrounds, and courts are invited to consider the underlying circumstances which may affect these groups. In relation to the first group, courts are specifically required to consider the impact of a custodial sentence on their leaving care rights.
New offending trends
The guideline reflects changes in offending behaviour that have occurred since the previous guideline was produced. Consequently, when dealing with any offence, courts must regard as an aggravating factor “[d]eliberate humiliation of victim, including but not limited to filming of the offence, deliberately committing the offence before a group of peers with the intention of causing additional distress or circulating details/photos/videos etc of the offence on social media or within peer groups.”
The section in the old guideline on ‘Trial and Sentencing of Cases in the Crown Court’ has been expanded and amended under the new rubric of ‘Allocation’. This is supplemented by some very helpful flow charts, in what can be a highly technical and complicated area. The emphasis remains on retaining jurisdiction in the Youth Court, which is generally the most appropriate forum, unless the case falls into one of the exceptional categories. One potentially significant amendment relates to the assessment of whether an offence amounts to a ‘grave crime’. Under the old SGC guideline, the court was directed to commit where “a sentence substantially beyond the 2 year maximum” was a real possibility. This appears to have been toned down; the test is now simply “whether there is a real prospect that a sentence in excess of two years’ detention will be imposed.”However, the court is no longer to make this determination taking the prosecution case at its highest; the rationale provided is that the court now has the power to commit grave crimes for sentence, but this also brings the position in line with adult courts following the introduction of the 2012 guideline on allocation. The net effect may well be very little practical change in any given case.
There is a much-expanded section on guilty pleas, which is introduced in tandem with the new definitive guideline on ‘Reduction in sentence for a guilty plea’ for adults. Referral orders are now explicitly excluded from the credit arrangements because this disposal can only be imposed where a young person has pleaded guilty. The guideline confirms that where a guilty plea is entered at the first opportunity, a detention and training must be discounted by at least one third; for example, where the appropriate sentence before the discount is 8 months, the appropriate DTO will be 4 months. Guidance is provided on sentencing for more than one summary offence, which is essentially that when imposing consecutive terms resulting in a maximum six months, the court may make a modest additional reduction, but is not obliged to do so. However, this guidance is somewhat flawed. Technically, the Youth Court is not limited to a maximum sentence of 6 months for multiple summary only offences, although it may be regarded as bad sentencing practice to impose on a young person a longer term than an adult could receive in identical circumstances. But if a Youth Court does regard 6 months as a notional maximum, it cannot impose two consecutive DTOs which total 6 months because the minimum DTO length is 4 months. Where the court identifies particular circumstances which significantly reduce the young person’s ability to understand what was alleged, or otherwise made it unreasonable to expect them to indicate a guilty plea sooner than was done, a reduction of one-third should still be made.
Offence specific guidelines and the custody threshold
The guideline includes offence specific guidelines for robbery and sexual offences, which replace rather dated SGC provisions. The format is new. Essentially, there is a two-stage process to determining offence seriousness. Firstly, the court must consider the short list of specific circumstances which may point towards either a custodial or non-custodial sentence. It will then assess the applicability of a longer list of aggravating and mitigating factors. If the custody threshold is passed, the court may have regard to the equivalent adult guidelines to determine sentence length and if doing so, may feel it appropriate to impose a sentence broadly within the region of half to two thirds of the appropriate adult sentence for those aged 15 – 17. It will be apparent that these guidelines allow substantially more discretion than for adult offences. For example, where a robbery is committed by a young person through a threat to use a bladed article which is not actually produced (and may not exist), this will be an aggravating factor, but there is no guidance on whether the offence should in consequence cross the custody threshold.
For other offences which may result in a custodial sentence, such as offences against the person and drug supply, courts may continue to have regard to the adult guidelines in determining sentence length. However, the guideline makes it clear that these guidelines should not be used to determine whether the custody threshold is passed. Consequently, adult guidelines indicating relatively harsh deterrent custodial sentences should not be consulted to determine whether a custodial sentence should be imposed on a young person “as a measure of last resort”.
 Paragraph 2.3 provides that, “the sentence must remain proportionate to the seriousness of the present offence”; see also paragraphs 1.1 and 10.4.
 Paragraph 3.6.
 Paragraph 2.9.
 Paragraphs 1.11 – 1.21.
 Paragraph 1.16 – 1.17
 Paragraph 1.18.
 Paragraphs 2.1 – 2.16.
 Paragraph 12.11.
 Paragraph 2.8
 Paragraph 2.10
 Paragraphs 5.1 – 5.25; in contrast this issue was given very limited consideration in the 2009 guideline (see paragraphs 10.7 – 10.8 and 11.18).
 Paragraph 5.15.
 The next highest DTO term is 6 months, but this would result in a discount of only one quarter.
 This mirrors the provision in ‘Reduction in Sentence for a Guilty Plea Definitive Guideline’ at paragraph E2.
 C v DPP  1 Cr App R (S) 189.
 Paragraphs 5.16 – 5.17; although these circumstances seem more likely to arise in the Youth Court, a similar provision is made in respect of adult offenders in the new ‘Reduction in Sentence for a Guilty Plea Definitive Guideline’ at paragraph F1.
 Part 7 of the SGC Sexual Offences guideline 30 April 2007 (in relation to offences with a lower statutory maximum for youths) and the Youth robbery guideline dated 25 July 2006.
 The sentencing matrix in the old SGC guideline with youth-orientated starting points and sentencing ranges is no longer applicable.
 Paragraph 6.46.
 Paragraph 6.45.
 For example, for supplying Class A drugs.
 Paragraph 6.42.