R v Morgan Clarke
| Jurisdiction | England & Wales |
| Judge | THE LORD CHIEF JUSTICE |
| Judgment Date | 24 January 2018 |
| Neutral Citation | [2018] EWCA Crim 185 |
| Court | Court of Appeal (Criminal Division) |
| Docket Number | No. 2017/05107/A1, 2017/05149/A1, 2017/05110/A1 & 2017/05108/A1 |
| Date | 24 January 2018 |
Attorney General's References Under Section 36 of the Criminal Justice Act 1988
[2018] EWCA Crim 185
THE LORD CHIEF JUSTICE OF ENGLAND AND WALES
( The Lord Burnett of Maldon)
Mr Justice Warby
and
Mr Justice Dove
No. 2017/05107/A1, 2017/05149/A1, 2017/05110/A1 & 2017/05108/A1
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
The Strand
London WC2
Mr P Jarvis appeared on behalf of the Attorney General
Mr M Brady appeared on behalf of the Offender Morgan Clarke
Miss S Duckworth appeared on behalf of the Offender Declan Andrews
Mr D James appeared on behalf of the Offender Anton Craig Thompson
Wednesday 24 th January 2018
THE LORD CHIEF JUSTICE:
On 23 rd October 2017, in the Crown Court at Manchester, the offenders, Clarke, Thompson and Andrews, were sentenced by Her Honour Judge Goddard QC for a range of serious offences, including kidnapping.
This is an application by Her Majesty's Attorney General, pursuant to section 36 of the Criminal Justice Act 1988, for leave to refer their sentences as unduly lenient. There is an also an application for leave to appeal against sentence made by Andrews on the basis that the sentence imposed was manifestly excessive.
Before turning to the detail of the offending, it is important to note the ages of the offenders. The offending occurred in early 2017. Clarke was born on 11 th December 1998 and so was just 18 at the time of the offending. Thompson was born on 26 th August 1997 and so was 19. Andrews was born on 3 rd December 1999 and so was 17.
In paragraph 40 of the Final Reference the submission was advanced that only Andrews should have received a discount by virtue of his youth. He was the only one under the age of 18 at the time of the offending. In support of his application for leave to appeal against sentence, Andrews made a similar point. Miss Duckworth refers to the Sentencing Council guideline for the sentencing of children and young people. The guideline undoubtedly applied to Andrews. She submits that his sentence should have been reduced by half or more, pursuant to the principle articulated in paragraph 6.4(6) of that guideline, as compared with the other offenders. In the course of his oral submissions Mr Jarvis, on behalf of the Attorney General, accepted that there was no stark cut-off point that applies in sentencing an offender aged 18. Miss Duckworth accepted the same proposition.
Reaching the age of 18 has many legal consequences, but it does not present a cliff edge for the purposes of sentencing. So much has long been clear. The discussion in R v Peters [2005] EWCA Crim 605, [2005] 2 Cr App R(S) 101 is an example of its application: See paras [10]–[12]. Full maturity and all the attributes of adulthood are not magically conferred on young people on their 18 th birthdays. Experience of life reflected in scientific research (e.g. The Age of Adolescence: thelancet. com/child-adolescent; 17 January 2018) is that young people continue to mature, albeit at different rates, for some time beyond their 18 th birthdays. The youth and maturity of an offender will be factors that inform any sentencing decision, even if an offender has passed his or her 18 th birthday. The ages of these offenders illustrate the point. The youth and immaturity of Clarke and Thompson were appropriate factors for the judge to take into account in these cases event though both were over 18 when they offended. It is apparent that the Judge did so, not only in the case of Andrews.
The offenders fell to be sentenced for the following offences:
All three offenders:
(a) Kidnap, the particulars of which were that between 20 th January 2017 and 23 rd January 2017 all three offenders unlawfully and by force or fraud took or carried away Carl Cain against his will.
(b) Blackmail, contrary to section 21(1) of the Theft Act 1968, the particulars of which were that between the same dates all three offenders, with a view to gain for themselves or another, made an unwarranted demand of monies from Connor Cain with menaces.
Clarke alone:
(c) Attempted robbery, contrary to section 1(1) of the Criminal Attempts Act 1981, the particulars of which were that on 19 th May 2017 Clarke attempted to rob Ashley Bird.
(d) Having an offensive weapon, contrary to section 1(1) of the Prevention of Crime Act 1954, the particulars of which were that on 19 th May 2017, without lawful authority or reasonable excuse, Clarke had with him in a public place an offensive weapon, namely a hammer.
Thompson and Andrews together:
(e) Doing an act tending and intended to pervert of public justice, the particulars of which were that on 4 th March 2017 they entered the home address of the Cain family and made a series of threats towards the family which had a tendency to pervert the course of public justice in that they intended the Cain family to retract their allegations.
(f) Theft, contrary to section 1(1) of the Theft Act 1968, the particulars of which were that on 4 th March 2017 Thompson and Andrews stole a Transition Mountain Bicycle and a Cube Mountain Bicycle belonging to Connor Cain.
Thompson alone:
(g) Having an offensive weapon, contrary to section 1 of the Prevention of Crime Act 1953, the particulars of which were that on 4 th March 2017, without lawful authority or reasonable excuse, he had with him in a public place offensive weapons, namely a hammer and a machete.
(h) A number of summary only driving matters and handling stolen goods were committed for sentence.
Andrews alone:
(i) Having an offensive weapon, contrary to section 1 of the Prevention of Crime Act 1953, the particulars of which were that on 4 th March 2017, without lawful authority or reasonable excuse, had with him in a public place offensive weapons, namely a hammer and a machete.
In respect of those offences the offenders were sentenced as follows:
| Offence | Clarke | Thompson | Andrews | |
| Kidnap | 4 years 8 months | 4 years 8 months | 3 years 1 month | |
| Blackmail | 3 years 4 months (concurrent) | 3 years 4 months (concurrent) | 2 years 5 months (concurrent) | |
| Attempted robbery | 2 years 4 months (consecutive) | – | – | |
| Having an offensive weapon | 12 months | (concurrent) | – | – |
| Perverting the course of justice | – | 2 years 4 months (consecutive) | 2 years 5 months (consecutive) | |
| Theft | – | NSP | NSP | |
| Having an offensive weapon | – | 12 months (concurrent) | – | |
| Handling stolen goods | – | 4 months (concurrent) | – | |
| Summary driving offences | – | NSP | 6 penalty points | – |
| Having an offensive weapon | – | – | NSP | |
| Total | 7 years' detention | 7 years' detention | 5 years 6 months' detention |
Thompson was also in breach of a suspended term of detention. The judge activated four months of that sentence and ordered it to run concurrently. A little later, at a “slip rule” hearing, the judge also imposed an appropriate disqualification and other sentences relating to the driving offences.
Given their ages at the time of the sentencing exercise, Clarke and Thomson received sentences of detention in a young offender institution. Andrews was sentenced to detention, pursuant to section 91 of the Powers of Criminal Courts (Sentencing) Act 2000.
The Facts:
Kidnap and Blackmail
We deal first with the kidnap and blackmail counts. On 21 st January 2017, acting together, all three offenders kidnapped a 16 year old boy named Carl Cain. They did so because they were aware that his brother Connor had received a few thousand pounds in compensation following a road traffic accident. They intercepted Carl outside a food takeaway in the early evening and told him to get his brother to come to see them. Connor was 18 at the time. Carl said that was not possible because his mobile phone had run out of credit. Thompson ordered him to accompany them. They walked towards his home address. Carl was pushing a bicycle. He tried to run off, but the offenders stopped him. They threatened him with violence were he to try to run off again. He tried to escape by jumping on his bicycle, but the offenders dragged him and pulled him from it. He was then punched and kicked.
Thompson and Andrews dragged Carl along the street. He was taken to a wooded area near the estate in Manchester where he lived. From there, one of the offenders phoned Connor Cain and gave Carl the telephone so that he could explain that he had been kidnapped. The offenders misidentified themselves as two men well known on the estate for being particularly tough. That caused the Cain family to panic. The offenders told Connor that a ransom of £2,000 should be paid to secure Carl's release. They also spoke to Carl's mother who genuinely feared that her son would be harmed.
The family immediately contacted the police. They attended quickly and were present when the offenders next telephoned. Thompson said that Carl would be stabbed and killed if their demands were not met. He, in fact, put a knife to Carl's throat. Mrs Cain explained that the most she could find was £1400. The offenders indicated that that would be sufficient. They gave instructions about where the money should be taken. Carl's father left with the money and followed the directions that the offenders had given.
By that time, the offenders were worried that the Cain family might have alerted the police. As a result, they moved Carl to a different spot in woods further away from his home and then kept him there all night. They told him that if he were to say anything to the police, they would rape him and kill his parents.
At first light the police...
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