BNE & Anor, R. v

Factual and Procedural Background

On 5 August 2024, an order was made under section 45A of the Youth Justice and Criminal Evidence Act 1999 to anonymise all matters relating to Applicant 1's daughter for life. The judgment anonymises the two applicants, twin sisters, as Applicant 1 and Applicant 2.

Applicant 1, aged 18 at the time, pleaded guilty in the Magistrates' Court to Taking a Child Without Lawful Authority and Assault by Beating of an Emergency Worker, and was committed for sentence. The offence of Taking a Child Without Lawful Authority was later remitted back to the Magistrates' Court when it emerged Applicant 1 had a statutory defence, and she pleaded guilty to Taking a Child in Care Without Lawful Authority instead. Applicant 1 also pleaded guilty to two further Assault by Beating of an Emergency Worker offences. She was committed for sentence for these offences and subsequently sentenced in the Crown Court to a total of 16 months' imprisonment, consecutive for the offences. A breach of a prior community order was also revoked.

Applicant 2, also aged 18 at the time, pleaded guilty to Taking a Child Without Lawful Authority and was committed for sentence. Two Assaults on Emergency Workers were sent for trial, one of which she later pleaded guilty to in the Crown Court. Applicant 2 was sentenced to a total of 16 months' imprisonment, consecutive for the offences.

Both applicants were aged 18 at conviction, but the sentences were incorrectly recorded as "imprisonment" rather than Detention in a Young Offender Institution, which is prohibited for persons under 21 by section 227 of the Sentencing Act 2020.

The applicants' offending arose from the forced adoption of Applicant 1's 9-month-old daughter. On 1 August 2024, Applicant 1 attended a supervised contact session at a children's hub. She appeared agitated and made plans with Applicant 2 to abduct the child. Applicant 1 took the child and fled the premises. The sisters took taxis intending to travel to London but were found by police the next day in Leeds. Both applicants resisted arrest and assaulted emergency workers during their detention and arrest. Both had previous convictions for violent offences, including assaults on emergency workers.

Pre-sentence reports detailed troubled childhoods for both applicants, histories of abuse, and high assessed risks of reoffending and serious harm, particularly towards children and emergency workers. The sentencing judge acknowledged the distressing circumstances, the planning involved in the abduction, and the applicants' previous convictions.

Legal Issues Presented

1. Whether the sentences imposed on Applicants 1 and 2 were lawful given the applicants' ages and the applicable sentencing provisions.
2. Whether the sentences for the assaults on emergency workers were manifestly excessive, particularly regarding the consecutive nature of the sentences.
3. Whether there was an undue disparity between the sentences imposed on Applicant 1 and Applicant 2 for the offences related to the child abduction.
4. Whether the sentencing judge erred in the assessment of personal mitigation and the starting points for sentencing in relation to the assaults and child abduction offences.

Arguments of the Parties

Applicant 1's Arguments

• The starting point of 6 months for each assault on an emergency worker was too high.
• The judge failed to properly consider Applicant 1's strong personal mitigation.
• The judge erred in ordering all assault sentences to run consecutively rather than making some concurrent, resulting in a manifestly excessive aggregate sentence of 16 months' imprisonment.

Applicant 2's Arguments

• The judge placed the offending too high on the guidance given in the precedent case relating to child abduction sentencing.
• The starting points for the offences of child abduction and assault on an emergency worker were too high.
• There was an unjustifiable disparity between the sentences imposed on Applicant 1 and Applicant 2, given their offending arose from the same factual circumstances and that Applicant 1's culpability was arguably greater.
• Applicant 2's involvement was secondary and followed Applicant 1's primary abduction, which should have been reflected in sentencing.

Table of Precedents Cited

Court's Reasoning and Analysis

The court analysed the sentences imposed on each applicant in light of their ages, the nature and circumstances of the offences, and the applicable sentencing legislation. It identified that the sentencing judge erred by imposing sentences of "imprisonment" on applicants aged under 21, which is prohibited by section 227 of the Sentencing Act 2020. The correct sentence form is Detention in a Young Offender Institution.

Regarding the assaults on emergency workers, the court acknowledged the seriousness of the offences, the applicants' previous convictions, and their entrenched attitudes toward violence against emergency workers. The starting point of 6 months' custody (reduced to 4 months after credit) for each assault was held not to be manifestly excessive. The court found no error in imposing consecutive sentences for these assaults as they were discrete and separate incidents.

In relation to Applicant 1's personal mitigation, the court found it was not sufficiently strong to justify a reduction in sentence for the offence of taking a child in care without lawful authority. The offence's nature meant it was likely to be committed in similar circumstances, and no arguable ground of appeal existed for that offence.

The court found merit in Applicant 1's ground of appeal regarding the consecutive sentences for the three assaults on emergency workers, noting the sentencing judge had not expressly considered totality. The court held that one of those sentences should run concurrently to avoid a manifestly excessive aggregate sentence.

For Applicant 2, the court rejected the argument that she should have received the same sentence as Applicant 1, noting the offence of taking a child without lawful authority was more serious than taking a child in care without lawful authority. However, it accepted that the sentencing judge failed to sufficiently consider Applicant 2's lesser and secondary role, resulting in a manifestly excessive sentence on the facts.

Consequently, the court allowed appeals to reduce the sentences and to properly substitute unlawful imprisonment sentences with detention in a Young Offender Institution.

Holding and Implications

The court GRANTED both Applicants leave to appeal against sentence.

For Applicant 1, the court quashed the sentences of imprisonment and substituted them with sentences of detention in a Young Offender Institution, adjusting the consecutive and concurrent sentences to a total of 12 months' detention. The aggregate sentence of 16 months' imprisonment was reduced to 12 months' detention reflecting proper consideration of totality.

For Applicant 2, the court quashed the sentences of imprisonment and substituted them with detention in a Young Offender Institution, reducing the sentence for taking a child without lawful authority to 8 months' detention (after credit) and maintaining a 4-month consecutive detention sentence for the assault, totaling 12 months' detention. The court rejected the argument for parity with Applicant 1 due to the differing seriousness of the offences but accepted the need to reflect Applicant 2's lesser role.

The direct effect is the lawful correction of sentences and a reduction in total custodial time. No new precedent was established beyond clarification of sentencing principles and proper application of statutory sentencing requirements for young offenders.