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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Criminal Division) Decisions >> Ghafoor v R. [2002] EWCA Crim 1857 (19th July 2002) URL: http://www.bailii.org/ew/cases/EWCA/Crim/2002/1857.html Cite as: [2003] 1 Cr App R (S) 84, [2003] 1 Cr App Rep (S) 84, (2002) 166 JP 601, [2002] EWCA Crim 1857, [2002] Crim LR 739 |
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COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM BRADFORD CROWN COURT
(His Honour Judge Gullick)
Strand, London, WC2A 2LL | ||
B e f o r e :
MR JUSTICE SILBER
and
HER HONOUR JUDGE GODDARD QC
____________________
IMRAN GHAFOOR | Appellant | |
- and - | ||
THE CROWN | Respondent |
____________________
Smith Bernal Reporting Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
Mr N. Campbell QC and Mr J. Gibson (instructed by the Crown Prosecution Service) for the Crown
____________________
AS APPROVED BY THE COURT
Crown Copyright ©
Lord Justice Dyson : This is the judgment of the Court:
“The appellant, an 18 year old came before the Crown Court for an offence of riot committed when he was 17. He was sentenced to four and a half years YOI in view of his age at the date of conviction (per Section 96 PCC(S) A 2000. Article 7 of the European Convention prohibits retrospective legislation and the second limb provides “Nor shall a heavier penalty be imposed than the one that was applicable at the time the criminal offence was committed. In the case of the appellant, is it a breach of his Convention rights under Article 7 for him to have been sentenced as an 18 year old and is the Court required to restrict itself to the maximum sentence (2 years detention) that could be imposed on a 17 year old appearing in the Youth Court?”
The statutory provisions
“96. Subject to sections 90,93 and 94 above, where-
(a) a person aged at least 18 but under 21 is convicted of an offence which is punishable with imprisonment in the case of a person aged 21 or over, and
(b) the court is of the opinion that either or both of paragraphs (a) and (b) of section 79(2) above apply or the case falls within section 79(3),
the sentence that the court is to pass is a sentence of detention in a young offender institution.”
“100. (1) Subject to sections 90,91 and 93 above and subsection (2) below, where-
(a) a child or young person (that is to say, any person aged under 18) is convicted of an offence which is punishable with imprisonment in the case of a person aged 21 or over, and
(b) the court is of the opinion that either or both of paragraphs (a) and (b) of section 79(2) above apply or the case falls within section 79(3),
the sentence that the court is to pass is a detention and training order.”
“(a)...the term of a detention and training order made in respect of an offence (whether by a magistrates’ court or otherwise) shall be 4, 6, 8, 10, 12, 18 or 24 months” (section 101(1)); and
“(b) the term of such an order “may not exceed the maximum term of imprisonment that the Crown Court could (in the case of an offender aged 18 or over) impose for the offence” (section 101(2)).
“164(1) For the purposes of any provision of this Act which requires the determination of the age of a person by the court or the Secretary of State, his age shall be deemed to be that which it appears to the court or (as the case may be) the Secretary of State to be after considering any available evidence.”
Article 7 of the ECHR
“No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence under national or international law at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time the criminal offence was committed.”
The facts
Sentencing remarks
The submissions
Discussion
“It is, however, important to say that the broad conceptual approach of a sentencing court does not undergo a fundamental change simply because the offender passes his 21st birthday. If all factors were identical an offender aged 21 years and a few days is likely to receive in substance much the same punishment as one who is 20 years and 11 months, and the court will in substance take account, for instance, of the criteria of section 1(4) and (5) of the 1982 Act for the slightly older person although not in terms strictly required by statute to do so.”
“The most telling point raised before us seems to be the point made that, had the matters been discovered and timeously dealt with, the appellant would have been entitled to be treated as a juvenile and detained for no more than 12 months. Whilst that is not in itself definitive of any sentence which should later be imposed upon him, it is a powerful factor to be taken into account.”
“We take the view that there is no axiomatic approach to a problem of this kind which would entitle the Court to say that the right sentencing approach is to look at the matter as at a particular date. We consider that the matter has to be looked at in the round. The fact that the series of offences was committed when the offender was 14 to 15 is, as was said in Cuddington, a powerful factor in affecting the appropriate sentence to pass as at today. On the other hand, it is not the sole and determinative factor. We also have to look at how a 14 to 15 year old might be dealt with today, and we have to look at all the circumstances of the case, including the way in which the appellant chose to conduct his defence.”
“We think that we are bound, (and the sentencing judge was bound), in the light of Bowers, to conduct the same process as was performed by the Court in that case, based upon the principle as stated by Potter J (as he then was) in Cuddington. In other words, first: we have to consider what is the likely sentence that the appellant would have been given had he been dealt with at the time that these offences occurred. Secondly, having considered what that sentence might have been, that will then be “a powerful factor” in deciding the proper sentence at this stage when we come now to consider the sentence of this appellant, who is now aged 44. Thirdly, we must then fix the sentence which we consider appropriate in all the circumstances as they are now.”
“That is not the end of the matter, however. We have to take into account the several factors that were also before the sentencing judge. First of all there is the effect that these events had on the victim. As we have pointed out, the offences do seem to have had a considerable effect upon him. Secondly, we have to take into account the fact that the psychiatric report suggested that there was a substantial risk of further offences against male and female children, both in the long and short term. We do not give too much weight to that, bearing in mind the fact that this appellant has not committed any offences of a sexual nature on young people, (other than that to which we have referred), during the intervening period. We also have to take account of the fact that today courts and society in general regard abuse of young children more seriously than the courts and society did 28 or 30 years ago.”
The court allowed the appeal and substituted concurrent sentences of 2 years imprisonment.