Our criminal case summaries series continued – sentencing

December 16, 2022

In the second in a series of criminal case summaries, Zarreen Alam-Cheetham from Exchange Chambers examines the cases of Kish [2022] EWCA Crim 1161 (SHPO – Order cannot be used to restrict access to animals) and Kavanagh [2022] EWCA Crim 1121 (Offenders aged under 18 at time of offence – Application of Guideline).

Kish [2022] EWCA Crim 1161 (SHPO – Order cannot be used to restrict access to animals)

The Defendant admitted possession of extreme pornographic images which showed sexual activity with animals. The CA quashed the SHPO made and held that a SHPO can only be made to protect individuals from the risk of sexual harm. Section 346 of the Sentencing Code states in unambiguous terms that the legislative purpose of the SHPO is “protecting the public or any particular members of the public from sexual harm”. Any extension of the SHPO regime to include harm to animals is clearly a matter for Parliament.

Kavanagh [2022] EWCA Crim 1121 (Offenders aged under 18 at time of offence – Application of Guideline)

At the time of offending the Defendants were aged 15 and 16, but 17 and 18 when convicted and sentenced. They were convicted of conspiracy to commit robbery and GBH. Knives, a machete and a sword were used, and caused life-altering injuries.

The Defendants were found to be dangerous. They each received an extended sentence of 17 years, comprising a 12 -year custodial term plus a five-year extended licence. The Judge took a starting point of 12 years, increased it to 16 years due to the seriousness of the offending, and then discounted by 25 per cent to reflect their ages. Paragraph 6.46 of the Guideline states that “the court may feel it appropriate to apply a sentence broadly within the region of half to two thirds of the adult sentence for those aged 15-17”. No reason was provided for the application of a discount of less than one third.

In relation to the appeal against sentence, it was held that whilst the dangerousness findings were correct, the judge had failed to explain why the Sentencing Children and Young People Guideline had not been followed. Each extended sentence was accordingly varied to 15 years, comprising a custodial term of ten years and eight months, with an extended licence period of four years and four months.