Sentencing: Where an offender crosses an important age threshold
R v Khan [2024] EWCA Crim 401 is a helpful and current authority on the issue of the approach to sentencing where the offender was a youth or young person at the date of the offending but at the date of sentence, has become an adult.
R v Khan adopts R v ZA [2023] EWCA Crim 596, which reinforces the point that the brains of young people are still developing up to the age of 25, especially in relation to impulsivity and a lack of consequential thinking.
R v Khan also adopts R v Limon [2022] EWCA Crim 39, which considered the correct approach to sentencing youths or young persons who cross an important age threshold.
Briefly, Khan was 17years and 11months old when he was arrested on suspicion of Class A drug offences. Following interview, Khan was not charged but released under investigation.
Months later, Khan (now aged 18) received a postal requisition relating to two offences of conspiracy to supply Class A drugs.
When Khan was 19, he was arrested in relation to a second set of Class A drugs offences.
Khan pleaded guilty to both sets of drugs offences and so he was sentenced in respect of two separate sets of Class A drugs offences. The first set of drugs offences was committed when Khan was under 18; the second set was committed when Khan was 18 and 19 years old.
With regards to the first set of drugs offences, the sentencing judge categorised Khan’s offending as significantrole within category 3, attracting a starting point of 4.5 years’ custody for an adult, with a sentencing range of 3.5 years – 7 years custody.
The judge adjusted the starting point downwards to 4years (48 months) to account for Khan’s age at the date of his offending (17 years and 11 months).
The judge then applied the appropriate credit (1/3), reducing the term to 32 months custody.
With regards to the second set of drugs offences, the judge acknowledged totalityand avoided double-counting, ordering a starting point of 2 years’ custody after trial, reduced to 16 months, after awarding the appropriate credit (1/3) but to be served consecutively.
The total sentence imposed was therefore one of 4 years (48 months).
On appeal, it was submitted that 4 years was manifestly excessivein respect of the first set of drugs offences because Khan was potentially eligible for a Referral Order,if he’d been charged post-arrest.
The appeal considered the correct sentencing approach for an individual who offended at 17 (A young person) and again as an adult, at 18 and 19.
Reference was made to the ‘Overarching Principles – The Sentencing of Children and Young People’, in particular paragraphs 6.1 to 6.3, commonly referred to as the ‘Children’ guideline.
After careful consideration their Lordships allowed the appeal.
With regards to the first set of drugs offences, the sentence of 32 months was reduced to 20 months.
With regard to the second set of drugs offences, the sentence of 16 months was unaltered.
The total sentence was therefore one of 36 months detention in a Young Offender’s Institution.
By way of sentencing approach:
- Determine the starting point, within the sentencing range, applicable for an adult,
- Applying the ‘Children’ guidelines and the principles therein, the court should then reduce the adult term by half to two thirds for those aged 15-17, allowing an even greater reduction for those aged under 15, &
- The court should then apply the appropriate credit if a guilty plea(s) had been entered.
Finally, the Court should bear in mind that culpability should always be judged at the date of offending and not sentence, especially as the brains of young people are still developing up to the age of 25.