What is the correct approach to sentencing an adult for an offence committed when he was a child? That question arises in each of the five cases which are before the court. For that reason, although otherwise unconnected, they have been heard together before this Special Court. Individually and collectively, they provide an opportunity to address a suggested tension between previous decisions of this court...
i) Whatever may be the offender's age at the time of conviction and sentence, the Children guideline is relevant and must be followed unless the court is satisfied that it would be contrary to the interests of justice to do so.
ii) The court must have regard to (though is not necessarily restricted by: see (v) below) the maximum sentence which was available in the case of the offender at or shortly after the time of his offending. Depending on the nature of the offending and the age of the offender, that maximum may be (a) the same as would have applied to an adult offender; (b) limited by statutory provisions setting a different maximum for an offender who had not attained a particular age; or (c) limited by statutory provisions restricting the availability of different types or lengths of custodial sentence according to the age of the offender.
iii) The court must take as its starting point the sentence which it considers was likely to have been imposed if the child offender had been sentenced shortly after the offence.
iv) If in all the circumstances of the case the child offender could not in law have been sentenced (at the time of his offending) to any form of custody, then no custodial sentence may be imposed.
v) Where some form of custody was available, the court is not necessarily bound by the maximum applicable to the child offender. The court should, however, only exceed that maximum where there is good reason to do so. In this regard, the mere fact that the offender has now attained adulthood is not in itself a good reason. We would add that we find it very difficult to think of circumstances in which a good reason could properly be found, and we respectfully doubt the decision in Forbes in this respect. However, the point was not specifically argued before us, and a decision about it must therefore await a case in which it is directly raised.
vi) The starting point taken in accordance with (iii) above will not necessarily be the end point. Subsequent events may enable the court to be sure that the culpability of the child offender was higher, or lower, than would likely have been apparent at the time of the offending. They may show that an offence was not, as it might have seemed at the time, an isolated lapse by a child, but rather a part of a continuing course of conduct. The passage of time may enable the court to be sure that the harm caused by the offending was greater than would likely have been apparent at that time. Because the court is sentencing an adult, it must have regard to the purposes of sentencing set out in section 57 of the Sentencing Code. In each case, the issue for the court to resolve will be whether there is good reason to impose on the adult a sentence more severe than he would have been likely to have received if he had been sentenced soon after the offence as a child...