Sentencing Youths – general principles

Jeanette Appleton

Jeanette Appleton

Jeanette has been working as a criminal lawyer for 15 years and is an Accredited Police Station Representative. She is vastly experienced in the preparation of serious cases, such as murder and sexual offences, for trial in the Crown Court.

Sentencing Youths - general principles

Sentencing young people – General principles, an extract from the Sentencing Council’s Guidelines

When sentencing children or young people (those aged under 18 at the date of the finding of guilt) a court must have regard to the principal aim of the youth justice system, which is to prevent offending by children and young people, and the welfare of the child or young person.

A court should also consider the effect the sentence is likely to have on the child or young person (both positive and negative) as well as any underlying factors contributing to the offending behaviour.

A custodial sentence is a measure of last resort and may only be imposed when the offence is so serious that no other sanction is appropriate. The primary purpose of the youth justice system is to encourage children and young people to take responsibility for their own actions and promote re-integration into society rather than to punish.

In having regard to the welfare of the child or young person, a court should ensure that it is alert to:

• any mental health problems or learning difficulties/disabilities;

• any experiences of brain injury or traumatic life experience (including exposure to drug and alcohol abuse) and the developmental impact this may have had;

• any speech and language difficulties

• the vulnerability of children and young people to self-harm, particularly within a custodial environment; and

• the effect on children and young people of experiences of loss and neglect and/or abuse.

Parental responsibilities

For any child or young person aged under 16 appearing before a court there is a statutory requirement that parents/guardians attend during all stages of proceedings. The court may also enforce this requirement for a young person aged 16 and above if it deems it desirable to do so. In addition to this responsibility there are also orders that can be imposed on parents. If the child or young person is aged under 16 then the court has a duty to make a parental bind over or impose a parenting order, if it would be desirable in the interest of preventing the commission of further offences. There is a discretionary power to make these orders where the young person is aged 16 or 17.

Available Sentences

Custodial sentences are a last resort for all children and there is an expectation that they will be particularly rare for children and young people aged 14 or under.

Absolute or conditional discharge or reparation order   10-17yrs

Financial Order    10-17yrs

Referral Order    10-17yrs

Youth rehabilitation order (YRO)    10-17yrs

Detention and Training Order (for persistent offenders only)      12-17yrs

YRO with intensive supervision and surveillance or fostering (for persistent offenders only)    12-17yrs

s.91 PCC(S) Act detention (grave crime)    10-17yrs

Extended sentence of detention     10-17yrs

Grave crimes are serious offences that have a maximum sentence for an adult of 14 years or more and some violent and sexual offences. These matters are likely to be either heard and/or dealt with in the Crown Court.

Reduction in sentence for guilty plea

The maximum level of reduction for a guilty plea is one-third for a plea indicated at the first hearing. After the first stage of the proceedings the maximum level of reduction is one-quarter, which will be reduced to a maximum of one-tenth on the first day of trial. The reduction will normally be decreased further, even to zero, if the guilty plea is entered during the course of the trial.

 

Different types of sentence available for youths:

Absolute or conditional discharge and reparation orders

An absolute discharge is appropriate in the least serious cases when, despite a finding of guilt, the court considers that no punishment should be imposed.

A conditional discharge is appropriate when, despite a finding of guilt, the offence is not serious enough to warrant an immediate punishment. The fixed period of conditional discharge must not exceed three years. Unless exceptional circumstances are found, a conditional discharge cannot be imposed if the child or young person has received one of the following in the previous 24 months: two or more cautions; or a conditional caution followed by a caution.

A reparation order can require a child or young person to make reparation to the victim of the offence, where a victim wishes it, or to the community as a whole. Before making an order the court must consider a written report from a relevant authority, e.g. a youth offending team (YOT), and the order must be commensurate with the seriousness of the offence.

Financial order

The court may impose a fine for any offence (unless the criteria for a mandatory referral order are met). When financial orders are being considered, priority must be given to compensation orders and, when an order for costs is to be made alongside a fine, the amount of the cost must not exceed the amount of the fine.

If the child or young person is under 16 then the court has a duty to order parents or guardians to pay the fine; if the young person is 16 or over this duty is discretionary. In practice, many children and young people will have limited financial resources and the court will need to determine whether imposing a fine will be the most effective disposal. The court should bear in mind that children and young people may have money that is specifically required for travel costs to school, college or apprenticeships and lunch expenses.

Referral orders

A referral order is the mandatory sentence in a youth court or magistrates’ court for most children and young people who have committed an offence for the first time and have pleaded guilty to an imprisonable offence.

Referral orders are the main sentence for delivering restorative justice and all panel members are trained Restorative Conference Facilitators; as such they can be an effective sentence in encouraging children and young people to take responsibility for their actions and understand the effect their offence may have had on their victim.

In cases where children or young people have offended for the first time and have pleaded guilty to committing an offence which is on the cusp of the custody threshold, the Youth Offending Team (YOT) may convene a Youth Offender Panel prior to sentence, where the child or young person is asked to attend before a panel and agree an intensive contract. If that contract is placed before the sentencing youth court, the court can then decide whether it is sufficient to move the sentence below custody on this occasion.

The court determines the length of the order but a Referral Order Panel determines the requirements of the order.

Offence seriousness          Suggested length of referral order

Low                                        3 – 5 months

Medium                                5 – 7 months

High                                       7 – 9 months

Very high                              10 – 12 months

 

Youth rehabilitation orders (YRO)

A YRO is a community sentence within which a court may include one or more requirements designed to provide for punishment, protection of the public, reducing re-offending and reparation.

When imposing a YRO, the court must fix a period within which the requirements of the order are to be completed; this must not be more than three years from the date on which the order comes into effect. The offence must be ‘serious enough’ in order to impose a YRO, but it does not need to be an imprisonable offence.

The available requirements within a YRO are:

• activity requirement (maximum 90 days);

• supervision requirement;

• unpaid work requirement (between 40 and 240 hours);

• programme requirement;

• attendance centre requirement (maximum 12 hours for children aged 10–13, between 12 and 24 hours for young people aged 14 or 15 and between 12 and 36 hours for young people aged 16 or over;

• prohibited activity requirement;

• curfew requirement (maximum 12 months and between 2 and 16 hours a day);

• exclusion requirement (maximum 3 months);

• electronic monitoring requirement;

• residence requirement;

• local authority residence requirement (maximum 6 months but not for any period after young person attains age of 18);

• fostering requirement (maximum 12 months but not for any period after young person attains age of 18);

• mental health treatment requirement;

• drug treatment requirement (with or without drug testing);

• intoxicating substance requirement;

• education requirement; and

• intensive supervision and surveillance requirement.

Orders with intensive supervision and surveillance or with fostering

An intensive supervision and surveillance requirement and a fostering requirement are both community alternatives to custody. The offence must be punishable by imprisonment, cross the custody threshold and a custodial sentence must be merited before one of these requirements can be imposed. An order of this nature may only be imposed on a child or young person aged below 15 (at the time of the finding of guilt) if they are a persistent offender.

With intensive supervision and surveillance:

An order of this nature must include an extended activity requirement of between 90 and 180 days, a supervision requirement and a curfew requirement. Where appropriate, a YRO with intensive supervision and surveillance may also include additional requirements (other than a fostering requirement), although the order as a whole must comply with the obligation that the requirements must be those most suitable for the child or young person and that any restrictions on liberty are commensurate with the seriousness of the offence.

With fostering:

Where a fostering requirement is included within a YRO, it will require the child or young person to reside with a local authority foster parent for a specified period that must not exceed 12 months. In order to impose this requirement the court must be satisfied that the behaviour which constituted the offence was due to a significant extent to the circumstances in which the child or young person was living, and that the imposition of fostering requirement would assist in the child or young person’s rehabilitation.

Custodial sentences

A custodial sentence should always be used as a last resort.

Detention and training order (DTO) 

A DTO cannot be imposed on any child under the age of 12 at the time of the finding of guilt and is only applicable to children aged 12 – 14 if they are deemed to be a persistent offender. A DTO can be made only for the periods prescribed – 4, 6, 8, 10, 12, 18 or 24 months.

Long-term detention

A child or young person may be sentenced by the Crown Court to long-term detention under section 91 of the Powers of Criminal Courts (Sentencing) Act 2000 if found guilty of a grave crime and neither a community order nor a DTO is suitable.

Dangerous offenders

If a child or young person is found to be a dangerous offender they can be sentenced to extended detention or detention for life.

A sentence of extended detention may be imposed only where the appropriate custodial term would be 4 years or more. The extension period must not exceed 5 years in the case of a specified violent offence and 8 years in the case of a specified sexual offence.

Detention at Her Majesty’s pleasure 

This is the mandatory sentence for any child or young person found guilty of committing a murder. The starting point for the minimum term is 12 years.

Jeanette Appleton

Jeanette Appleton

Jeanette has been working as a criminal lawyer for 15 years and is an Accredited Police Station Representative. She is vastly experienced in the preparation of serious cases, such as murder and sexual offences, for trial in the Crown Court.

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