13 February 2020
A Recent Win in a Landmark Court of Appeal Case
We recently won a landmark Court of Appeal case involving vulnerable defendants, whereby our client’s sentence was reduced by half. Such cases are particularly rewarding because not only did we help to achieve a positive outcome for our client, but it also sets a precedent for how similar cases are approached by the courts in the future.
The appeal took place at the Royal Courts of Justice in London during December and involved a defendant referred to here as X. The defendant was represented by Michael Collins, under our instruction.
This case, along with 2 others heard on the same day, raised issues about the proper approach to sentencing offenders who suffer from autism or other mental health conditions or disorders.
X had pleaded guilty, in the Crown Court at Leeds, to sexual offences which he had committed between March and October 2018, when he was aged 15 to 16. His three victims were boys aged 6 and 13, and a girl aged 8. On 30 September 2019 he was sentenced to a total of 5 years’ detention pursuant to section 91 of the Powers of Criminal Courts (Sentencing) Act 2000.
We were able to successfully argue that his sentence was manifestly excessive in length on a number of grounds, including a failure by the judge to take into account the effects of X’s autism.
According to section 143(1) of the Criminal Justice Act 2003, several important factors must be considered where an offender suffers from a mental health condition or disorder:
- The court must consider the offender’s culpability in committing the offence and any harm which the offence caused, was intended to cause or might foreseeably have caused.
- The court must consider whether the condition could have impaired the offender’s ability to exercise appropriate judgment, to make rational choices, understand the consequences of his actions, or whether it caused the offender to behave in a disinhibited way.
- Mental health conditions and disorders may be relevant to the decision about the type of sentence imposed.
- Mental health conditions and disorders may be relevant to an assessment of whether the offender is dangerous.
- Finally, any mental health conditions or disorders may need to be taken into account in ensuring that the effect of the court’s sentence is clearly understood by the offender and in ensuring that the requirements of a community order or an ancillary order are capable of being fulfilled by the offender.
It will be apparent from all of the above that sentencing an offender who suffers from a mental disorder or learning disability necessarily requires a close focus on the mental health of the individual offender (both at the time of the offence and at the time of sentence) as well as on the facts and circumstances of the specific offence.
A pre-sentence report prepared by a member of the Youth Offending Team indicated that X did not accept responsibility for his offences and seemed not to understand either the seriousness of his offending or its potential consequences. The report referred to testing which had shown that X had an IQ of 75 indicating a low level of functioning, only five higher than the level (70) which would indicate a learning disability. The author of the report suggested a Youth Rehabilitation Order with appropriate requirements.
The court also had a psychological report, based on assessments carried out in April 2019, which diagnosed that X suffers from autism. The authors of this report noted that although X’s full-scale IQ score was 75, his verbal comprehension score was particularly low, placing him within the second percentile. Their opinion was that X:
“… should be considered to be a boy with significant difficulties in terms of his cognitive abilities and as such will require intensive input to support him to achieve educationally and to build skills in his area of deficit.”
In the first hearing of his case, X was sentenced to 5 years detention.
On behalf of X, Mr Collins submitted at appeal that the total sentence was manifestly excessive in length. He challenged the judge’s categorisation of the offences against R under the relevant adult sentencing guideline, the weight given to X’s autism and general functioning, the level of credit given for the guilty pleas and the proportionality of the restraining order put in place.
In addition to the material which was before the judge, our case was assisted by a report provided by X’s Case Manager at the Young Offender Institution where he is detained. This shows that X was anxious, nervous and vulnerable on arrival. It gave a stark illustration of the consequences of the intellectual limitations described in the psychologists’ report. On arrival, it was explained to X that boys who have committed sexual offences usually avoid disclosing the nature of their crimes because of the risk of being targeted by others. He was advised to adopt a cover story involving a different type of crime. X said that he understood; but when he was first pressed by other young offenders to tell them the nature of his crimes, he immediately did so. The result was that he was confronted by others and had to be moved to a different part of the institution for his own safety. He was accommodated in a unit catering specifically for young offenders who would struggle to cope in a normal custodial setting. Even there, X has appeared vulnerable and introverted. He needed help with simple matters such as completing his menu sheets or understanding the system for making phone calls to his mother. He has relied on staff “100% for everything”. The author of the report concluded:
“So it is fair to say that [X] is probably the most vulnerable YP on a unit with 48 vulnerable YPs on it.”
There is no doubt that X’s case gave rise to a difficult sentencing process. He committed serious offences which caused serious harm. However, paragraph 1.1 of the overarching principles guideline “Sentencing children and young people” makes clear that when sentencing offenders aged under 18, the court must have regard to the principal aim of the youth justice system (namely, to prevent offending by children and young people) and to the welfare of the young offender. In addition, the guideline emphasises at the outset that the sentencing of young offenders for sexual offences involves a number of different considerations from adults:
“The primary difference is the age and level of maturity. Children and young people are less emotionally developed than adults; offending can arise through inappropriate sexual experimentation; gang or peer group pressure to engage in sexual activity; or a lack of understanding regarding consent, exploitation, coercion and appropriate sexual behaviour.”
In this case – the judge ultimately saw fit to reduce X’s sentence on the basis of a number of factors:
- The nature of the offending (committed by an adolescent when playing with much younger friends) was clearly suggestive of inappropriate sexual experimentation by an immature and vulnerable offender.
- The expert assessment of X’s behaviour as fitting Autism Spectrum Disorder, and his particular limitations as identified in the psychologists’ report, were clearly important factors to be taken into account in relation both to X’s culpability and to the likely impact on him of a custodial sentence.
- In the adult guideline for offences contrary to section 8 of the 2003 Act, which can only be committed against a child aged under 13, the sentencing levels take into account the inevitable difference in age between the adult offender and the child victim. In X’s case, this difference was significantly lessened.
In closing comments, the appeal court judges concluded that:
“ …we consider the total sentence imposed on X was manifestly excessive. In our judgment, the appropriate total sentence, before giving credit for guilty pleas, was three years’ detention. Giving credit of a sixth for the guilty pleas, as the judge did, we conclude that the appropriate total sentence is two and half years’ detention.”
“We therefore allow this appeal. We quash the concurrent sentences of 5 years’ detention imposed below on counts 1 and 2, and substitute for them concurrent sentences of detention pursuant to section 91 of the 2000 Act for two years and six months. “
