“Sentencing decisions cannot be prescribed by accidents of time”

Stephanie Panchkowry considers the mandatory minimum term for young people in the light
of the recent case of Kamarra-Jarra (Ismaila) [2024] EWCA Crim 198.

Sentencing for murder is a difficult and complex exercise, particularly for youths and young
adults.

The sentence for murder is prescribed by law; it is a mandatory life sentence, either to be
detained during his majesty’s pleasure under section 259 of the Sentencing Act 2020 if a
defendant is under 18 years’ old or to custody for life, pursuant to section 275. A minimum
term, meaning the minimum time which must pass before the defendant is eligible for
consideration for release by the Parole Board, must be fixed. Schedule 21 to the Sentencing
Act 2020 determines the minimum term in relation to life sentences for murder.

Until recently, the starting point for the minimum term in the case of all children under the age
of 18 at the time of a murder had been 12 years; for an adult 25 years. Section 127 of the Police,
Crime, Sentencing and Courts Act 2022 introduced paragraph 5A of Schedule 21 and applies
to any person convicted on or after 28 June 2022. It introduces a sliding scale of starting points
for minimum terms for children convicted of murder, taking into consideration the age of the
child and the seriousness of the murder.

The Court of Appeal has shown an emerging appreciation of the impact of culpability by
reference to maturity when sentencing youths and young adults for murder. It is recognised that
young adults are not fully developed and have not attained full maturity, which clearly impacts
on their decision-making, risk-taking behaviour and impulsivity. Turning 18 is not necessarily
indicative of maturity, insight or understanding (R v Peters, Palmer and Campbell [2005]EWCA crim 605). It does not present a “cliff edge” for the purposes of sentencing; “full
maturity and attributes of adulthood are not magically conferred on young people on their 18th
birthdays” (Lord Burnett of Maldon in R v Clarke (Morgan) [2018] EWCA Crim 185). Mrs
Justice May DBE, Judicial Lead for Youth Justice observed in R v ZA [2023] EWCA Crim 596:

“It has been recognised for some time that the brains of young people are still developing up to the age of 25, particularly in the areas of the frontal cortex and hippocampus. These areas are the seat of emotional control, restraint, awareness of risk and the ability to appreciate the consequences of one’s own and others’ actions; in short, the processes of thought engaged in by, and the hallmark of, mature  and responsible adults. It is also known that adverse childhood experiences, educational difficulties and
mental health issues negatively affect the development of those adult thought processes. …”

Kamarra-Jarra (Ismaila) [2024] EWCA Crim 198 is a welcome authority on the issue of
sentencing co-defendants where one is just over 18 years of age and the others are a few months
younger, and puts the sentencing exercise in the context of the new provisions of paragraph 5A
of Schedule 21 to the Sentencing Act 2020. It provides important guidance on the correct
approach to sentencing co-defendants on the cusp of or having just reached “adulthood”.

The facts of Kamarra-Jarra involved a brutal planned attack to rob and kill the deceased,
against a backdrop of a drug debt. The ages of the co-defendants were as follows: the appellant
was 18 years and 4 months, co-defendant J 17 years and 10 months and co-defendant C 17
years and 9 months. Other than a minimal difference in age, the defendants were equally
culpable. All three arrived at the deceased’s house, where his partner and young child were
present and sleeping upstairs. J knocked on the door and, as the deceased opened it, pushed it
hard causing him to fall. J had his knife out and immediately felled him in the hallway with
two vicious chop wounds to the head. The appellant and C followed in straight behind. J pushed
past and searched his house for money, drugs and car keys, whilst the appellant and C stabbed
the deceased approximately 18 times. They then fled the scene. The fatal wound penetrated 12
centimetres deep, through the deceased’s lung, causing it to collapse. It severed his pulmonary
artery, causing severe internal bleeding. All three had previous convictions and admitted to
dealing in Class A drugs during the trial. The pre-sentence report for the appellant noted that
he had suffered serious physical and emotional abuse as a child, and it was said that his maturity
was low. The sentencing judge described the murder as an execution, that all three had been
jointly responsible, that it was a murder for a gain during a robbery and that the seriousness of
the offending was particularly high.

The co-defendants, both being children at the time of the murder, were each sentenced to a
minimum term of 29 years, while the appellant, only just an adult at the time of the murder,
received a life sentence with a minimum term of 32 years. The Court of Appeal held that the
sentencing judge was wrong in that he took an unduly prescriptive approach in reaching a
starting point of 30 years. A life sentence with a minimum term of 32 years was manifestly
excessive. A minimum term of 28 years, less time spent on remand was instead imposed.
Insufficient regard had been given to the offender’s age, immaturity and background, and the
Court of Appeal held that the disparity between the sentences imposed on the appellant and J
and C was too great.

The Court of Appeal gave the following helpful guidance:

1. The starting points should not be applied mechanistically, but in a flexible way so as to
achieve a just result. They are but the start. Relevant aggravating and mitigating factors
are then to be considered, culminating in the minimum term.

2. The appropriate sentence had to be fact specific and, where one offender was over 18
and another under 18, the focus had to be on determining the appropriate individual
minimum terms, rather than striving to maintain a strict arithmetical relationship
between the sentences which precisely reflects the differential starting points in
paragraph 5A.

3. The Sentencing Council Guideline on Sentencing Children and Young People is
important even when a defendant has attained the age of 18. Sentencing judges should
have in mind the following factors:

a. Inexperience, emotional volatility and negative influences (paragraph 4.10);

b. Any traumatic life experiences and the developmental impact they may have
and the effect on children and young people of loss and neglect and/or abuse
(paragraph 1.12);

c. The background of children and young people, including deprived homes, poor
parental employment records, low educational attainment, early experience of
offending by other family members, experience of abuse and/or neglect,
negative influences from peer associates, and the misuse of drugs and/or alcohol
(paragraph 1.13);

d. A looked-after child and the additional complex vulnerabilities that are likely to
be present in their background. Looked-after children and young people may
have no, or little, contact with their family and/or friends. They may have
emotional and behavioural problems, and they are likely to have accessed the
care system as a result of abuse, neglect or parental absence due to bereavement
or desertion (paragraph 1.16).

e. Particular factors which arise in the case of black and minority ethnic children
and young people also need to be taken into account (paragraph 1.18).

4. The Judicial College Publication, Children and Young People in the Crown Court
Bench Book also provides guidance to sentencing youths in the Crown Court, stating
that although the availability of a particular sentence depended on an offender’s age,
levels of culpability might be affected as much by their emotional or developmental
age, and immaturity or vulnerability might affect culpability even after an offender had
reached adulthood. The following factors should be considered:

a. The extent to which the offence was planned.

b. The level of force used (if any).

c. The extent to which the offender was aware of the possible consequences of
their actions.

d. The inherent vulnerability of children and young people.

e. Any mental health problems or learning disabilities.

f. Their emotional and developmental age.

g. Any external factors that may have affected their behaviour, for example, time
spent as a looked after child; exposure to drug/alcohol abuse; familial criminal
behaviour or domestic abuse; disrupted accommodation or education; lack of
familial support; victim of neglect or abuse; experiences of trauma and loss.

The impact of Kamarra-Jarra

Whilst age governs the normal starting point for a minimum term, it does not factor in an
assessment of culpability by reference to maturity. Paragraph 5A does not dictate that a
different approach be taken when sentencing an offender who has just turned 18.

Looking beyond mere chronological age is a welcome development. However, the question
arises as to what will happen when there are different levels of culpability where co-defendants
are all of similar ages. Whilst arguments on disparity were not a central driver behind this
successful appeal, the difference of approximately 6 months in age was clearly a relevant
factor; all being born in the same calendar year and all in the same academic year at school.
Age and immaturity are of course critical factors, but so too are respective roles in the
offending. Disparity should reflect a distinction between, for example, principle or secondary
role, intention to kill or to cause really serious harm. Permitting flexibility and allowing
manoeuvring and divergence for immaturity shows a better understanding of the development
in children and young adults. However, will sentencing judges now give too much weight to
age to strive to achieve less disparity between co-defendants of nearing equal ages? Only time
will tell but this landmark case demonstrates that too prescriptive an approach in sentencing is
unsavoury and “sentencing decisions cannot be prescribed by accidents of time”.