No: 2008/02442/A5 and 2008/02616/A5 
Neutral Citation Number: [2008] EWCA Crim 1249
IN THE COURT OF APPEAL 
CRIMINAL DIVISION 
Royal Courts of Justice
Strand
London, WC2 

Date: Friday, 23rd May 2008
 
B E F O R E:
 
LORD JUSTICE HOOPER 
 
MR JUSTICE JACK 
 
MR JUSTICE GRIFFITH WILLIAMS 

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R E G I N A 

‑v‑ 

M

KM
 
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Mr H Barton appeared on behalf of the Applicant M 
Mr J Lasker appeared on behalf of the Applicant KM 
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J U D G M E N T 

1.	MR JUSTICE JACK:  On 4th March 2008 at the Crown Court at Burnley, the applicants, M and KM, each pleaded guilty to an offence of assault contrary to section 47 of the Offences Against the Person Act 1861.  KM also pleaded guilty to an offence of theft.  On 30th April 2008 M was sentenced to a 12‑month detention and training order, and KM was sentenced to ten months' detention in a young offender institution, with three months concurrent on the theft.  Their applications for leave to appeal against sentence have been referred to the court by the Registrar.  We grant them leave.
2.	The offences were committed on a 16‑year‑old girl named A.  Late on 2nd November 2007, while she was waiting for an taxi to take her home after a night out, A was abused verbally by M and then attacked by her.  She was punched a number of time, fell to the pavement and was punched some more and kicked.  KM joined in the punching.
3.	Photographs of A show that she had a number of small cuts and scratches to her face, and bruising and swelling.  She also suffered was headaches.  She was put through a very unpleasant experience, which she will not easily put behind her, but no serious injury was caused.  She had dropped her handbag and KM took various items from it, including cash, a mobile phone and a valued photograph of A's deceased mother, before the two girls made off.
4.	M was born on 29th March 1993, and so was 14 at the time of the attack and was still just 14 when she entered her plea.  On 5th February 2007 she had been made subject to a 4‑month referral order for an offence of battery.  On 10th December 2007 and on 28th January 2008, each after the present offence, she had received two reparation orders for disorderly conduct.  In addition, on 8th July 2004 she had been remanded for an offence of battery and likewise on 5th June 2006.  So when she came up for sentence she had committed six offences, with three offences of battery prior to the offence for which she was being sentenced.
5.	KM was born on 27th March 1988.  She was 19 at the time of the offences.  On 20th January 2004 she had received an absolute discharge for an offence of criminal damage.  On 21st April 2004 a referral order of three months had been made in respect of a further offence of criminal damage.  That order was extended for three months on 13th September 2004, by reason of offences of battery and criminal damage.  She had been warned for battery on 7th July 2003, and reprimanded for a non‑dwelling house burglary and handling on 26th August 2003.
6.	The pre‑sentence report on M recommended a 12‑month supervision order with a 3‑month curfew order.  It stated that the risk of harm from the offending which she posed could be reduced by her participating in a structured programme of supervision, with the aim of addressing her misuse of alcohol and developing her thinking skills.  It said that she regretted her involvement in the offences, but sought to see herself as the victim and to paint A as the aggressor.
7.	The report on KM recommended a community order with a requirement of supervision.  It said her consumption of alcohol was of concern and was the reason behind her offending.  In her case she had expressed regret for her actions and had shown some empathy with her victim.
8.	In passing sentence the Recorder first dealt at some length with the facts.  He referred to the guideline on assault.  He stated that A was a vulnerable victim because of her age, and was deliberately targeted as such.  We are not clear what he meant by "targeted as such", for M was 14 and the attack was not premeditated or planned.  The Recorder pointed to there being two assailants and that the attack was sustained, notwithstanding the pleas of A that it stop.  It involved kicks to the head by M.  There was then the theft by KM.  The Recorder stated that M should be entitled to credit for plea, not at the earliest stage, but at the plea and case management hearing when she had offered to plead to section 47.  KM was only entitled to credit for a plea entered on the day of trial.  The Recorder referred to the difficulties both girls had had in being excluded from mainstream schools, and in KM's case her being taken into care and, as was said in the pre‑sentence report, then going off the rails.  KM had, however, kept out of trouble since 2004 and now had a young child.
9.	The Recorder held that he was not obliged to treat either as a dangerous offender.  He held that the assault passed the custody threshold.  He said that, having regard to the guidelines, in M's case had she been an adult a sentence of 30 months would have been appropriate, with a reduction of 25 per cent for plea.  He said that given her age, the appropriate starting point was a detention and training order of 18 months and he arrived at 12 months after allowance for plea.
10.	The Recorder sentenced KM on the basis that she had joined in and sustained the attack and stolen the bag.  He concluded the appropriate sentence would have been 12 months after a trial, and so made an order for detention of ten months, with three months to run concurrently for the theft.  He treated the theft as an aggravating feature of the assault.
11.	In sentencing M, the Recorder did not state that he found her to be a persistent offender, which was a requirement before he could make a detention and training order under section 100 of the Powers of Criminal Courts (Sentencing) Act 2000.  We are satisfied, however, that he was entitled to make that finding.  We are told that he had not raised this with counsel prior to sentencing.  It would have been appropriate for him to do so.
12.	It is submitted to us on behalf of M that a custodial sentence was manifestly excessive, bearing in mind in particular her age.  We do not agree.  We consider that a detention and training order was appropriate in this case, bearing in mind her previous offences and this sustained attack involving kicking.  However, we think that by reason of her age a shorter period was appropriate.  There will be substituted an order of six months.
13.	We also consider that the order of ten months on KM was longer than appropriate.  It is conceded in her case that custody cannot itself be criticised.  We think that that concession was rightly made.  She was substantially older.  She played the minor role in the assault and she committed the theft.  Her plea was late.  Balancing those factors, in her case we substitute an order of six months' detention on the assault.  The concurrent sentence of three months on the theft will remain.
14.	THE ASSOCIATE:  By reason of M's age, would your Lordships be minded to make reporting restrictions?
15.	LORD JUSTICE HOOPER:  The judge refused to order the disclosure of her name? 
16.	MR BARTON:  Yes.
17.	LORD JUSTICE HOOPER:  He was going to, and then you persuaded him not to.
18.	MR BARTON:  That is right.
19.	LORD JUSTICE HOOPER:  So we continue the order.  Her name is not to be published.
20.	MR BARTON:  Thank you.
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