R v Fairhurst

JurisdictionEngland & Wales
CourtCourt of Appeal (Criminal Division)
JudgeTHE LORD CHIEF JUSTICE
Judgment Date16 October 1986
Judgment citation (vLex)[1986] EWCA Crim J1016-1
Date16 October 1986
Docket NumberNos. 7609/C/85, No. 1955/G/86, 2631/A/86, 3044/A/86, 3103/C/86, 1666/D/86 and 1672/D/86

[1986] EWCA Crim J1016-1

IN THE COURT OF APPEAL

CRIMINAL DIVISION

Royal Courts of Justice

Before:

The Lord Chief Justice of England (Lord Lane)

Mr. Justice Nolan

and

Mr. Justice MacPherson

Nos. 7609/C/85, No. 1955/G/86, 2631/A/86, 3044/A/86, 3103/C/86, 1666/D/86 and 1672/D/86

Regina
and
Jonathan Fairhurst
Regina
and
Christopher Hippolyte
Regina
and
Mark Andrew Wilson
Regina
and
Wayne Gerard Narey
and
Gerard Michael Anthony Hardman
Regina
and
Christopher John Ellis
and
Robert John Mawson

MR. J. MULLER, Q.C. appeared on behalf of the Appellant Fairhurst.

MR. J. WALKER-SMITH appeared on behalf of the Appellant Hippolyte.

MISS K.M. BROWN appeared on behalf of the Appellant Wilson.

MR. M. TAYLOR appeared on behalf of the Appellants Narey and Hardman.

MR. J. MUIR appeared on behalf of the Appellants Ellis and Mawson.

THE LORD CHIEF JUSTICE
1

A number of cases involving sentences of detention under section 53(2) of the Children and Young Persons Act 1933 and of youth custody under the provisions of the Criminal Justice Act 1982 have been listed for consideration by the Court. The reason is that points of difficulty have arisen which we wish to try to resolve for the benefit of sentencing courts in the future.

2

The first and principal problem is the inter-relation between the Criminal Justice Act 1982, sections 6, 7(8) and 7(9) on the one hand and section 53(2) of the 1933 Act on the other.

3

Section 6 of the Criminal Justice Act 1982 introduces the concept of youth custody.

4

Section 7(8) provides as follows: "An offender aged less than 17 years shall not be sentenced to a term of youth custody which exceeds 12 months at a time; and accordingly – (a) a court shall not pass a youth custody sentence on such an offender whose effect would be that he would be sentenced to a total term which exceeds 12 months; and (b) so much of any such term for which such an offender is sentenced as exceeds 12 months shall be treated as remitted."

5

Section 53(2) of the 1933 Act (as amended) provides: "Where a child or young person is convicted on indictment of any offence punishable in the case of an adult with imprisonment for fourteen years or more, not being an offence the sentence for which is fixed by law, and the court is of opinion that none of the other methods in which the case may legally be dealt with is suitable, the court may sentence the offender to be detained for such period not exceeding the maximum term of imprisonment with which the offence is punishable in the case of an adult as may be specified in the sentence…….".

6

Three points are of particular importance: (1) the "fourteen years" requirement; (2) the requirement that no other method of disposal is suitable; (3) the conviction must be on indictment.

7

As to the occasion on which a sentence of section 53(2) detention can properly be imposed, there are two poles of judicial opinion. They can perhaps be exemplified by the cases of Oakes (1983) 5 Cr. App. R. (S) 389 on the one hand and Butler (1984) 6 Cr. App. R. (S) 236 on the other.

8

In Oakes the offender was aged 16 and fell to be dealt with for two offences of burglary and two other offences with twelve offences to be taken into consideration. He, in company with his brother, had gone to the house of a woman of 87, and while he had engaged her in conversation at the front door, his brother broke in at the back and stole property valued at £1200. The other offences were of a similar type. He was sentenced to thirty months' detention under the provisions of section 53(2) of the Children and Young Persons Act.

9

On appeal it was held that the Court had in law the power to pass the sentence it in fact passed, but that the choice of sentence was not appropriate to the circumstances of the case. Section 53(2) was not to be used as a means of escaping from the very specific limitations imposed by the 1982 Act. It was designed to give the courts exceptional powers to deal with young people in exceptionally serious cases. The burglaries in that case were not, so it was held, in the province of the very serious crime with which section 53(2) was designed to deal. The offences were serious and unpleasant, but not of the gravity of those with which section 53(2) was intended to deal. The Court varied the sentence to twelve months' youth custody.

10

At the other end of the scale from Oakes is the decision of this Court in Butler to which I was a party. Butler was a case in which the appellant was aged 16. He pleaded guilty to six counts of burglary and asked for no less than 23 other offences, mostly of the same type, to be taken into consideration. In some cases damage was done to the houses and the amount of the damage involved was substantial. He was sentenced to a total of two years' detention, which was left unaltered on appeal to this Court.

11

Mr. Justice Boreham giving the judgment of the Court, at page 243 of the report, had this to say: "It seems to us, in the light of the decision in Nightingale, that the crucial question in circumstances such as these is: were there other methods which were suitable and adequate for disposing of the matter? Narrowing that question to the particular circumstances of this case, was 12 months' youth custody adequate to reflect the gravity of the offences? No doubt in considering that question the Court will hesitate before making use of section 53(2) and will confine itself, if it properly can, to 12 months' youth custody. But where such a sentence is clearly inadequate, then in our judgment the Court should take advantage of section 53(2) and pass the appropriate term of custodial sentence."

12

We find it unnecessary to cite the further authorities which are all usefully set out in the judgment given by Lord Justice Mustill in R. v. Standing and Ealand (unreported), 25th June, 1986.

13

It seems to us, with the benefit of hindsight, that the decision in Oakes on the one hand and Butler on the other may have gone too far, each of them in opposite directions. On the one hand there exists the desirability of keeping youths under the age of 17 out of long terms of custody. This is implicit in the provisions of the Criminal Justice Act 1982 already referred to. On the other hand it is necessary that serious offences committed by youths of this age should be met with sentences sufficiently substantial to provide both the appropriate punishment and also the necessary deterrent effect, and in certain cases to provide a measure of protection to the public. A balance has to be struck between these objectives.

14

In our view: (1) it is not necessary, in order to invoke the provisions of section 53(2) of the Children and Young Persons Act 1933, that the crime committed should be one of exceptional gravity, such as attempted murder, manslaughter, wounding with intent, armed robbery or the like; (2) on the other hand it is not good sentencing practice to pass a sentence of detention under section 53(2) simply because a twelve months' youth custody sentence seems to be on the low side for the particular offence committed; (3) where the offence plainly calls for a greater sentence than one of twelve months' youth custody and is sufficiently serious to call for a sentence of two years' youth custody or more had the offender been aged 17 or over, then it will be proper to sentence to a similar term of section 53(2) detention. If the offence would merit a sentence of less than two years' but more than twelve months' youth custody for an offender aged 17 or over, then the sentence should normally be one of youth custody and not of section 53(2) detention. It cannot be said that the difference between a sentence of, say, twenty-one months and one of twelve months youth custody is so great that the twelve months could be regarded as an inappropriate term; (4) where more than one offence is involved for which section 53(2) detention is available, but the offences vary in seriousness, provided that at least one offence is sufficiently serious to merit section 53(2) detention, detention sentences of under two years duration, whether concurrent or consecutive, may properly be imposed in respect of the other offences (see Gaskin (1985) 7 Cr. App. R. (S) 28); (5) where an offender is aged under 15 and thus ineligible for youth custody, a detention sentence of less than two years may well be appropriate.

15

The next problem is illustrated by the appeal of Fairhurst before us. Where there are two offences committed by a 15 or 16-year old and one of them, A, carries a maximum sentence of fourteen years, and the other, B, carries a lower maximum, then generally speaking it is not proper to pass a sentence of section 53(2) detention in respect of offence A, which would not otherwise merit it, in order to compensate for the fact that twelve months' youth custody is grossly inadequate for offence B. Where however it can truly be said that the defendant's behaviour giving rise to offence B is part and parcel of the events giving rise to offence A, such a sentence may properly be passed.

16

A further matter which has particularly exercised the Court in this area is the desirability or otherwise of passing consecutive or concurrent sentences of section 53(2) detention and youth custody. The difficulty arises (as in the case of Fairhurst) where one of the offences carries a maximum penalty of fourteen years or more but where the other carries a maximum penalty of less than fourteen years, or equally where the other offence comes before the Crown Court on committal for sentence under section 37 of the Magistrates' Courts Act 1980. What is the Court to do if it determines that a section 53(2) detention sentence is appropriate for the first offence and...

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