Jordan Millican discusses youth sentencing principles following the Court of Appeal’s decision in R v ZA

July 17, 2023

R v ZA – Court of Appeal gives essential guidance on youth sentencing

In R v ZA [2023] EWCA Crim 596 the Court of Appeal set out a checklist for both judges and counsel to apply at the point of sentencing children and young people. This judgment emphasises the importance of the ‘individualistic approach courts are required to adopt in relation to the sentencing of children and young people.’

Facts

ZA conspired with his co-defendants to rob taxi drivers. The group attempted to rob a taxi Driver, Mr Bringye, during which the driver was fatally stabbed giving rise to charges of manslaughter and murder.

The Appellant, aged 15 at the time, appealed against a total sentence of five years’ detention for conspiracy to steal, conspiracy to rob and possession of a bladed article. He was acquitted of murder and manslaughter following a trial at the Central Criminal Court.

When sentencing, the Judge said that they had taken account of the ‘Sentencing Children and Young People’ (the overarching guideline) despite finding that the harm and culpability factors were at the highest levels as the offending resulted in the death of the taxi driver, noting that the starting point for an adult would be 12 year’s imprisonment.

Appeal

ZA submitted two grounds of appeal as follows:

  • The judge was incorrect in their approach by allowing the death of the taxi driver to affect their consideration of the seriousness of the offending. It was submitted on behalf of the Appellant that if the jury were sure on the evidence that ZA either intended or had foreseen serious harm or injury being caused, then he would have been convicted of manslaughter.
  • The sentencing judge failed to have regard to the Sentencing Council guideline Robbery, Sentencing Children and Young People (‘the youth robbery guideline’). Both prosecution and defence counsel submitted a note for sentence in advance of hearing, but none referred to the youth robbery guideline including the judge.

Decision

This is an important decision regarding youth sentencing, an already notoriously difficult exercise for both judge and counsel, as it highlights that serious consideration must to be given to the specific principles that relate to children and youths.

The court at paragraph 52 recognises the all too forgotten notion that the brain is still going through its developmental stages up until the age of 25. Biological factors such as the functioning of the frontal lobes of the brain play an important role in the development of self-control and of other abilities. Social factors such as ‘adverse childhood experiences, educational difficulties and mental health issues’ will undoubtedly negatively impact decision making capabilities and impulsivity control. The court acknowledges that ‘[i]t is categorically wrong to set about the sentencing of children and young people as if they are “mini-adults”’.

Sentencing Notes (paragraphs 49 – 51)

The Court of Appeal was particularly critical of sentencing courts not leaving sufficient time to prepare for a youth sentencing hearing, actually conduct the hearing itself and for the judge to reflect and balance competing and conflicting submissions.

In ZA, the court highlighted a number of issues with the prosecution note. Firstly, it did not draw any direct distinction between the older and the younger defendants, both by reason of age and role in the context of the offending. Secondly, it suggested that the adult robbery guidelines applied to all defendants when in fact, they only applied to two of them who were not present for sentencing. There was also a youth-specific bladed article guideline in force which the court should have been directed to. Thirdly, the note did not mention the overarching youth guideline until its penultimate page, and then only in relation to paragraph 6.46 of that guideline which referred to using the relevant adult guidelines as a starting point for a custodial sentence.

Overarching Youth Guideline (paragraphs 55 – 62)

It will be unhelpful for the prosecution to start by directing the court straight to paragraph 6.46, which suggests that an appropriate custodial sentence for a youth might be “half to two-thirds of the adult sentence”. The fundamental approach is thoughtful consideration of the ‘welfare of children and young people, and of the youth justice system’s principal aim of preventing offending by them.

Regard to welfare means having regard to social and behavioural problems including mental health, traumatic life experience, vulnerability to self-harm as well as evidence of grooming and neglect or abuse [para. 57].

Youth Robbery Guideline (paragraphs 63 – 68)

Any specific guideline for an offence relating to a youth should be read in tandem with the overarching youth sentencing guideline and the court should adopt a stepped approach as follows:

  • Step 1: determine the seriousness of the offence by reference to harm and culpability factors. Use of very significant force and/or threat or use of a bladed article, firearm or imitation firearm and/or significant physical or psychological harm are given as factors indicating that a custodial sentence or YRO with ISS may be justified.
  • Step 2: consider aggravating and mitigating factors ‘to complete the assessment of seriousness.’
  • Step 3: consider personal mitigation indicating that ‘the effect of personal mitigation may reduce what would otherwise be a custodial sentence to a non-custodial one, or a community sentence to a different means of disposal.’
  • Step 4: reduction for guilty plea.
  • Step 5: reconsideration of the sentence for a final time to ensure it is appropriate for the child or young person.

Checklist (paragraph 83)

The guideline codifies the proposition that an ‘entirely different approach to sentence is required than that which courts routinely apply to adult offenders.’ The court set out its checklist in full below:

  • Court listing should ensure that there is sufficient time for the judge, even if that judge heard the trial and knows the case well, to read and consider all reports and to prepare sentencing remarks in age-appropriate language.
  • Consideration should be given to listing separately, and as a priority, the sentence of any child(ren) or young person(s) jointly convicted with adult co-defendants.
  • The courtroom should be set up and arranged to ensure that the child or young person to be sentenced is treated appropriately, namely as a vulnerable defendant entitled to proper suppor So far as possible the judge should be seated on a level with the child or young person, and the latter should be able to sit near to counsel, with parental or other support seated next to them.
  • Counsel must expect to submit full sentencing notes identifying all relevant Sentencing Council Guidelines, in particular any youth-specific guideline(s), addressing material considerations in an individualistic way for each defendant separately (if more than one young defendant is to be sentenced). Where an individualistic approach is mandated, as it is for a child or young person, a note which addresses all defendants compendiously risks missing important distinctions.

These notes should be uploaded well in advance of the sentencing hearing.

  • The contents of the Youth Justice Service pre-sentence report and any medical/psychiatric/psychological reports will be key. Courts should consider these reports bearing in mind the general principles at section 1 of the overarching youth guideline, together with any youth-specific offence guideline, carefully working through each.
  • In general, it will not be helpful to go straight to paragraph 6.46 of the overarching youth guideline without having first directed the court to general principles canvassed earlier in that guideline, as well as to any youth-specific guideline. The stepped approach in the overarching youth guideline and any youth-specific offence guideline should be followed. Working through the guideline(s) in this way will enable the court to arrive at the most appropriate sentence for the particular child or young person, bearing in mind their individual circumstances together with the dual aims of youth sentencing.
  • If the court considers that the offence(s) is(are) so serious as to pass the custody threshold, the court must consider whether a YRO with ISS can be imposed instead. If it cannot, then the court must explain why.

Commentary

This decision now serves as a benchmark and sets expectations on both the court and counsel when approaching the already ‘difficult and time-consuming endeavour’ of youth sentencing. Emphasis is placed on paragraphs (4) and (6) of the checklist which, read together, reinforce the need to adopt an individualistic approach. Sentences should be child-centric and tailored to meet the welfare needs of the child or young person whilst also ensuring justice is achieved.

Jordan Millican is currently completing a criminal law pupillage at Exchange Chambers.

 

Back to News