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Youth Court, 16 year old in court looking at custody

Former MemberFormer Member Posts: 1,876,324 The Mix Honorary Guru
Hello can anyone please advise?

My 16 year old son has just been in court for the first time and had his case adjourned for a Youth offending team pre-sentence report, The court has told him they may be looking at a custodial sentence! He has no previous convictions and is not known to the police.

Now for the offence...it is affray and possession of a knife!
2 weeks ago he drank 3 litres of strong cider got blind drunk and then went into a local off licence and put his money on the counter and took a bottle of cider, he was confronted by a male shop assistant and had it taken back off him for not being old enough, he then took another bottle and once again the shop keeper took the bottle from him.......now for the serious bit he then took out a knife and waived it around saying I am having this and i dont care if I am not old enough!! A member of the public came in at that point thought there was a robbery ( there wasnt) and held my son till the police arrived. He is appalled at what he did very ashamed, he says he found the knife and that is why he had it. That is the offence

For the mitigating circumstances
He has never been in trouble
He had been kicked out of his home by me and his mum to live with his brother due to him drinking and not coming home.
he was drinking because his girlfriend had finished with him
His brother who he was living with had told him he would have to move out
He thinks due to the pressure he had done terrible at his exams
he had been to the Jobcentre and found nothing

Please dont condone or have negative comments he and I both know he has been a total idiot and things could have been worse, but in his words he had the worst week of his life! The 14 hrs he spent in a cell have had an immediate effect on him and his whole attitude has changed and he is back home.

My questions are
Can I hire a Barrister to state mitigating circumstances would it do any good ( he has pleaded guilty)
What discount would he get for pleading guilty at the first opportunity
Is there any other options for a 16 year old instead of a DTO custody or a referral order?

Thank you

Comments

  • Former MemberFormer Member Posts: 1,876,324 The Mix Honorary Guru
    Discount for pleading guilty at the earliest opportunity is normally 1/3, so if they were going to sentence him to 6 months he would get 4 and under current rules would be out in 2 months.

    Possession of a knife is a very serious matter and is something the courts are keen to send out a tough message about. Both charges are medium level offences (however these are only indications and the court has the sole right in determining the seriousness of the offence based on the facts heard/admitted).

    I take it your son is being sentenced in the Magistrates' Court if you're talking about instructing Counsel. To be honest, whether mitigation comes from a solicitor or Counsel won't make much difference.
  • Former MemberFormer Member Posts: 1,876,324 The Mix Honorary Guru
    Avizandum wrote: »
    Discount for pleading guilty at the earliest opportunity is normally 1/3, so if they were going to sentence him to 6 months he would get 3 and under current rules would be out in 10 weeks.

    Possession of a knife is a very serious matter and is something the courts are keen to send out a tough message about. Both charges are medium level offences (however these are only indications and the court has the sole right in determining the seriousness of the offence based on the facts heard/admitted).

    I take it your son is being sentenced in the Magistrates' Court if you're talking about instructing Counsel. The maximum custodial sentence in the Magistrate's Court is 6 months. To be honest, whether mitigation comes from a solicitor or Counsel won't make much difference.

    Thank you for your reply
    He is being sentenced in the magistrates Youth court in a months time he is awaitng a youth team report.
  • Former MemberFormer Member Posts: 1,876,324 The Mix Honorary Guru
    It's not a problem. There are plenty of good things for mitigation, particularly this being his first offence and was previously unknown to the police. Furthermore, the obvious impact his arrest and prosecution has had on him will go in his favour and the fact that he is now back at home in a presumably stable environment. He should make every effort to find a job over the next month or maybe even start applying for voluntary positions to show that this was just a one off and that he is making the effort to move on and put it behind him.

    Custody is not inevitable, but given there was a knife involved the bench will be considering a custodial sentence as a possible option. Ultimately the Youth Team Report will play a big part in helping them arrive at an appropriate sentence.

    If he is unlikely to offend again, and it can be seen that this was a one off incident that is out of character then it's likely he will get some kind of community based sentence such as a Youth Rehabilitation Order (which would include an element of Community Payback)
  • Former MemberFormer Member Posts: 1,876,324 The Mix Honorary Guru
    Positive comments
    Avizandum wrote: »
    It's not a problem. There are plenty of good things for mitigation, particularly this being his first offence and was previously unknown to the police. Furthermore, the obvious impact his arrest and prosecution has had on him will go in his favour and the fact that he is now back at home in a presumably stable environment. He should make every effort to find a job over the next month or maybe even start applying for voluntary positions to show that this was just a one off and that he is making the effort to move on and put it behind him.

    Custody is not inevitable, but given there was a knife involved the bench will be considering a custodial sentence as a possible option. Ultimately the Youth Team Report will play a big part in helping them arrive at an appropriate sentence.

    If he is unlikely to offend again, and it can be seen that this was a one off incident that is out of character then it's likely he will get some kind of community based sentence such as a Youth Rehabilitation Order (which would include an element of Community Payback)

    Once again, Thank you.

    As a concerned and very worried parent that is the advice that I wanted to hear. Would it be of benefit to hire a barrister and if so do you know how much one might cost, or would this simply be overkill.
  • Former MemberFormer Member Posts: 1,876,324 The Mix Honorary Guru
    Sorry, I should have clarified that Barristers are known as Counsel. Instructing a Barrister won't make much difference.
  • Former MemberFormer Member Posts: 1,876,324 The Mix Honorary Guru
    I Think I will be able to sleep tonight after your advice
    So worst case scenario is he is sentenced to 24 months minus a third for early guilty plea = 16 months then half that sentence is to be served in custody and half on probation, so 8 months max worse case!

    Dont worry about replying Avizandum as it is very late. I will keep you updated with proceedings. Regards
  • Former MemberFormer Member Posts: 1,876,324 The Mix Honorary Guru
    I hope it all goes well for you and your son.
  • Former MemberFormer Member Posts: 1,876,324 The Mix Honorary Guru
    Taking legal advice on a message board is like asking for financial advice from a tramp I'm afraid.

    The best advice we can give you is to get a solicitor. Whilst your son pleading guilty at the earliest opportunity will go in his favour, someone like Avizandum (as honourable as his intentions might be, so no disrespect) telling you he'll get a 1/3 of any possible sentence is irresponsible.

    The following is from the CPS and is a rough guideline.

    Robbery without a weapon with minimum force/threat is used
    No aggravating or mitigating factors
    Youth start point is community order ranging upto a detention and training order (ie prison).

    Robbery with a weapon or where violence was used resulting in an injury
    Youth start point is 1 year in prison upto a maximum of 6 years. No other aggravating/mitigating factors.

    Now aggravating factors that could count against him, based on the info you have provided:
    Vulnerable victim (shopkeepers are generally vulnerable victims)
    Weapon produced
    Violence threatened

    Mitigating factos:
    Co-operation with the authorities
    Unplanned
    Remorse

    it all depends on the judge and the outcome of the reports, but prison is a real possibility I'm afraid.
  • Former MemberFormer Member Posts: 1,876,324 The Mix Honorary Guru
    Mitigating factor: no robbery.
  • Former MemberFormer Member Posts: 1,876,324 The Mix Honorary Guru
    grayfray wrote: »
    He is being sentenced in the magistrates Youth court

    I'm not 100% sure but i thought magistartes could only give out custodial sentences of 6 months, maybe recently increased to a year.#

    Ofc i could be different in a magistrates youth court as people may go there as the town may have no youth offending team at it's crown court but could give out longer sentences.
  • Former MemberFormer Member Posts: 1,876,324 The Mix Honorary Guru
    Whowhere wrote: »
    Taking legal advice on a message board is like asking for financial advice from a tramp I'm afraid.

    The best advice we can give you is to get a solicitor. Whilst your son pleading guilty at the earliest opportunity will go in his favour, someone like Avizandum (as honourable as his intentions might be, so no disrespect) telling you he'll get a 1/3 of any possible sentence is irresponsible.

    It's not irresponsible. The sentencing guidelines are quite clear that pleading guilty at the earliest opportunity should lead to a 1/3 discount. Now if you read what I originally said, I stated that the normal discount for pleading guilty at the earliest opportunity is 1/3. They also state that a reduction should be applied to the sentence where there is a guilty plea. It ranges from a maximum of 1/3 when pleading guilty at the earliest opportunity to a 1/10th on the date the trial begins or during the trial. To go into more detail about discounts...they apply to punitive elements of the sentence and not ancillary, such as a driving ban in a motoring offence case.

    Ultimately sentencing is for the magistrates, but only within the parameters of the sentencing guidelines, which restricts their freedom in sentencing greatly.

    All custodial sentences under 12 months are subject to an automatic early release after half the sentence has been served with no licence conditions. For custodial sentences over 12 months in length a person usually becaomes eligable for parole after half their sentence.

    Furthermore, quoting the CPS on sentencing is irresponsible. They are the prosecuting authority and take nothing to do with sentencing. They take decisions on charging and conduct prosecutions. The appropriate authority on sentencing in England and Wales is the Sentencing Council for England and Wales (however, the DPP is a member of the Sentencing Guidleines Council and plays a part in drawing up the sentencing guidelines).
  • Former MemberFormer Member Posts: 1,876,324 The Mix Honorary Guru
    katralla wrote: »
    Mitigating factor: no robbery.

    I've just reread his post. Waving a knife around is still serious, below are the guidelines for sentencing. Avizandum, please point out where it says in writing that someone will recieve exactly 1/3 off their sentence for pleading guilty.

    Offence seriousness (culpability and harm) A.
    Identify the appropriate starting point. Starting points based on first time offender pleading not guilty.

    Example of nature of activity: Weapon no used to threaten or cause fear
    Starting Point: High level community order where the offensive weapon is not a knife. Close to 12 weeks custody where the weapon is a knife
    Range: Band C fine to 12 weeks custody

    Example of nature of activity: Weapon not used to threaten or cause fear but offence committed in dangerous circumstances
    Starting Point: 6 weeks custody where the weapon is not a knife. A custodial sentence in excess of 6 months where the weapon is a knife
    Range: High level community order to Crown Court

    Example of nature of activity: Weapon used to threaten or cause fear; and offence committed in dangerous circumstances
    Starting Point: A custodial sentence in excess of 6 months (Crown Court)
    Range: Crown Court

    Offence Seriousness (culpability and harm) B
    Consider the effect of aggravating and mitigating factors (other than those within examples above). Common aggravating and mitigating factors - the following may be particularly relevant but these lists are not exhaustive

    Factors indicating higher culpability

    Particularly dangerous weapon Specifically planned use of weapon to commit violence, threaten violence or intimidate Offence motivated by hostility towards minority individual or group Offender under influence of drink or drugs Offender operating in group or gang. Factors indicating greater degree of harm

    Offence committed at school, hospital or other place where vulnerable persons may be present Offence committed on premises where people carrying our public services Offence committed on or outside licensed premises Offence committed on public transport Offence committed at large public gathering, especially where there may be risk of disorder. Factors indicating lower culpability

    Weapon carried only on temporary basis Original possession legitimate e.g. in the course of trade or business. In making its decision on sentence, the magistrates' court is required to consider offence seriousness, (culpability and harm) and aggravating features and then go on to consider offender mitigating features.
  • Former MemberFormer Member Posts: 1,876,324 The Mix Honorary Guru
    There is, within the sentencing guidelines, a seperate section relating to guilty pleas. Reading the sentencing guidelines is not as straight forward as turning to the page that relates to the offence you have pead guilty to/been found guilty of. There are certain matters that are generic to all offences, and as such, are dealt with once in their own section and not repeated throughout the entire document.

    You have also failed to notice the word normal within my post (something which I have directd you to prior to this also) - if you're going to challange someone on something you don't know a lot about, first make sure that you have read the post in its entirity and ensure you understand exactly what is being said. Normal implies that this is where the courts would normally go, but can vary on certain factors.

    To quote the sentencing guidelines on this matter:
    The Council guideline Reduction in Sentence for a Guilty Plea, revised 2007, states that the punitive elements of the sentence should be reduced to recognise an offender’s guilty plea. The reduction has no impact on sentencing decisions in relation to ancillary orders, including disqualification.

    The level of the reduction should reflect the stage at which the offender indicated a willingness to admit guilt and will be gauged on a sliding scale, ranging from a recommended one third (where the guilty plea was entered at the first reasonable opportunity), reducing to a recommended one quarter (where a trial date has been set) and to a recommended one tenth (for a guilty plea entered at the ‘door of the court’ or after the trial has begun). There is a presumption that the recommended reduction will be given unless there are good reasons for a lower amount.*

    The application of the reduction may affect the type, as well as the severity, of the sentence. It may also take the sentence below the range in some cases. The court must state that it has reduced a sentence to reflect a guilty plea.4 It should usually indicate what the sentence would have been if there had been no reduction as a result of the plea.
    *emphasis added

    The sentencing guidelines also refer you to a further document, the Reduction in Sentence for a Guilty Plea guidelines, which the latest revision of was issued in 2007. In line with this guideline and the 2008 Sentencing Guidelines issued by the Sentencing Council a guilty plea at the eraliest opportunity should normally lead to a 1/3 reduction in the punitive part of the sentence (custody is always the punitive element of a sentence). So, if an individual sentenced for a motoring offence was given a custodial sentence, plus a disqualification from driving after pleading guilty at the earliest opportunity the normal discount would be 1/3 of the intended custodial sentence and nothing from the disqualification from driving.

    Furthermore, I have also consulted Halsbury's Laws of England, and as required when using this encyclopedia have used other databases to ensure that the published edition is still corerct in this area and hasn't been updated by further statutory changes / changes in the common law)

    One also has to consult the Criminal Justice Act 2003 and Sentencing Act 2002. Discounts for guilty pleas are enshrined within the former and the guidelines issued in both Sentencing Gudielines and the Reduction in Sentence for a Guilty Plea guidelines ensure that this happens.
  • Former MemberFormer Member Posts: 1,876,324 The Mix Honorary Guru
    Hey there,

    It seems like your son is going through a tough time at the moment and understandably you are worried for him.

    Whilst the other users have posted some excellent guidance already, namely Avizandum and Whowhere, it is important to mention that your son should seek independent legal advice as soon as possible.

    The legal advisor will be able to explain to him the possible penalties for the charges and how pleading guilty or not guilty will affect this.

    You may wish to contact your local Citizens Advice Bureau (CAB). You can visit the CAB website to find your local office or to read their advice guides on various topics.

    Furthermore, your son may wish to instruct a solicitor for advice. Your son may be eligible for public funding depending on his income and the solicitor will be able to advise him about this. They can also advice on whether a barrister is required to attend the hearing. The Community Legal Advice website has an excellent search facility for finding solicitors in your local area.

    Good luck and I hope all goes well for you and your son.

    :)
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