Factual and Procedural Background
The opinion concerns appeals against sentence arising from the murder of a 16-year-old victim in The City on 9 September 2021. Plaintiff 1 was convicted on 8 April 2022, and Plaintiff 2 was convicted on 11 April 2022. [1][2]
On 27 May 2022, Judge Kerr sentenced Plaintiff 1, aged 19, to custody for life with a minimum term of 23 years and 142 days. Plaintiff 2, aged 17 at sentence and 16 at the offence, was detained during His Majesty’s pleasure with a minimum term of 17 years and 113 days. [3][4]
The Court of Appeal considered the sentence appeals of Plaintiff 1 and Plaintiff 2. The sentence appeal of Plaintiff 3 became academic because Plaintiff 3’s conviction was to be quashed. [5]
Legal Issues Presented
- Whether Plaintiff 1’s sentence was manifestly excessive because insufficient weight was given to mitigation. [6][7][8]
- Whether Plaintiff 1’s sentence was wrong in principle or manifestly excessive because the court failed to account properly for the need to avoid unjustifiable disparity between his sentence and Plaintiff 2’s sentence. [9]
- Whether Plaintiff 2’s sentence was manifestly excessive because insufficient weight was given to his age, vulnerability, lack of premeditation, absence of intent to kill, and other mitigating features. [10][11]
Arguments of the Parties
Plaintiff 1’s Arguments
- The sentence was manifestly excessive because insufficient weight was given to the absence of an intention to kill, lack of premeditation, Plaintiff 1’s age, the principle against a steep sentencing escalation after turning 18, and the absence of relevant previous convictions. [8][12]
- Plaintiff 1’s age should have resulted in a greater reduction from the 25-year statutory starting point. [13]
- The sentencing court had approached disparity between the offenders incorrectly and had started from too high a point. [9]
Plaintiff 2’s Arguments
- The case involved no statutory aggravating features, although the public and frightening nature of the attack and the danger caused during the pursuit were aggravating features. [10][14]
- Significant mitigation included the absence of intent to kill, lack of premeditation, Plaintiff 2’s age, lack of relevant previous convictions, vulnerability, childhood trauma, exploitation by older youths, and emotional immaturity. [15][16]
- The sentencing judge had considered the relevant matters and selected the correct starting point, but had failed to give sufficient weight to the cumulative mitigating features. [11]
Table of Precedents Cited
| Precedent |
Rule or Principle Cited For |
Application by the Court |
| Attorney General's Reference (Clarke) [2018] EWCA Crim 185; [2018] 1 Cr App R (S) 52 |
Turning 18 is not a “cliff edge” for sentencing; young people continue to mature beyond 18 at different rates. |
The principle was relied upon in Plaintiff 1’s submissions concerning the weight to be given to his age. [17][18] |
| R v Peters [2005] EWCA Crim 605; [2005] 2 Cr App R (S) 101 |
Sentences should not be suddenly postponed or accelerated because of age; sentencing should reflect a continuum, although Schedule 21 cannot be applied mathematically. |
The principle was cited in support of Plaintiff 1’s challenge to the sentence. [19][20] |
| Attorney General's References Nos 143 and 144 of 2006 (Brown and Carty) [2007] EWCA Crim 1245; [2008] 1 Cr App R (S) 28 |
Where offenders convicted of murder are respectively under and over 18, minimum terms should be adjusted so that any disparity is no more than a fair reflection of the age difference. |
The Court held that Judge Kerr had conscientiously applied this guidance and had avoided unjustifiable disparity. [21][22][23] |
Court's Reasoning and Analysis
The applicable version of the Sentencing Code was the version in force before amendments taking effect on 28 June 2022. Murder sentences were fixed by law: custody for life applied to an offender aged over 18 but under 21, while detention during His Majesty’s pleasure applied to an offender under 18. The court was required to set an appropriate minimum term having regard to the seriousness of the offence, Schedule 21, and relevant sentencing guidelines. [24][25]
For Plaintiff 1, aged 18 or over when the offence was committed, Schedule 21 provided a 25-year starting point where the offender took a knife to the scene intending to commit an offence or have it available as a weapon and used it in the murder. For Plaintiff 2, who was under 18, the relevant starting point was 12 years. [26][27][28]
The Court found that Judge Kerr had considered all relevant aggravating and mitigating features and had properly addressed the potential injustice of mechanically applying the different statutory starting points. [23]
The absence of intent to kill and premeditation did not remove the seriousness of the offence. It was a group murder committed in broad daylight; Plaintiff 1 used the knife and inflicted the fatal injury, while Plaintiff 2 carried the knife during the chase and handed it to Plaintiff 1 knowing what Plaintiff 1 intended to do with it. [29]
The Court considered that the 24-year term for Plaintiff 1 was below the 25-year starting point, despite aggravating features that could have justified an uplift. This reflected the mitigation available to him. [30]
The lower term for Plaintiff 2 was justified by his age, other mitigating features, and Plaintiff 1’s role as the principal offender. However, Plaintiff 2’s sentence could not be reduced too far because he had led the public foot chase while carrying the knife and because unjustifiable disparity had to be avoided. [31]
Holding and Implications
Both appeals against sentence were dismissed. The Court held that, although the sentences were tough, they were neither wrong in principle nor manifestly excessive. [32]
The direct effect was that the minimum terms of 24 years for Plaintiff 1 and 18 years for Plaintiff 2, subject to credit for time spent in custody, remained in place. [30][32] The opinion identifies no broader implication or new precedent beyond applying the existing statutory framework and authorities.