R v Marley Clarke

This is an appeal against sentence brought by leave of the single judge.

On 25 April 2025, in the Crown Court at Birmingham, the appellant, then 18 years of age, was sentenced by Mr Recorder Boydell KC for offences of violent disorder, contrary to section 2 of the Public Order Act 1986 (count 1), and having an offensive weapon in a public place, contrary to section 1(1) of the Prevention of Crime Act 1953 (count 2). On count 1, the judge imposed a suspended sentence order of 18 months' custody, suspended for 2 years, with a rehabilitation activity requirement of 30 days and an unpaid work requirement of 150 hours. On count 2, the judge imposed a concurrent suspended sentence order of 2 months' custody, suspended for 2 years.

The sole ground of appeal is that the judge was wrong to impose a custodial sentence at all, and that the proper sentence should have been a community order for 2 years, with the same requirements.

At first sight, this may seem an unusual complaint to make, where a defendant has escaped immediate custody for serious offending. However, at the time of the offences the appellant was only 16 years old. That is the foundation for this sole ground of appeal.

We are grateful to Miss Toal for her written and oral submissions. During the course of the hearing we asked her what the practical difference would be between the sentence which was passed and the sentence she invites us to substitute. We were concerned, for example, as to whether a custodial sentence, albeit suspended, might have implications for future employment and the like. But, other than in very general terms, Miss Toal was unable to assist us with any real difference it might make.

This was a serious offence of violent disorder which took place in Hawksley Square, Birmingham on 10 August 2022. There were three defendants charged with the offence, although many more young males were involved.

The appellant was the youngest of the three defendants. His date of birth is 19 May 2006, so he was aged 16 years 3 months at the time of the offences. The next youngest was Bradley Case. His date of birth is 15 February 2006, so he was aged 16 years 6 months at the time of the offences. The oldest of the three defendants was Adam Ballenger. His date of birth is 6 April 2004, so he was aged 18 years 4 months at the time of the offences.

We need summarise the facts of the violent disorder only briefly, but that is not to diminish in any way the seriousness of the offence. Steven McCauley and his friend, Adrian Walker walked to the shops in Hawksley Square, south Birmingham. When they arrived, there was a group of 10 to 15 young men, some of whom were throwing eggs. Mr McCauley challenged the group, demanding to know who had thrown an egg at him. The group started to move towards him aggressively and followed Mr McCauley as he walked off. Mr McCauley turned and confronted the group. Fighting broke out.

In the course of what followed, the appellant, who was distinctive because of his large Afro hairstyle visible on the CCTV footage, was seen wielding an iron pole. At some point he passed the pole to his co-defendant Bradley Case. Mr McCauley and Mr Walker ended up on the ground being kicked and punched. Mr McCauley was hit on the head at some point with the pole. Much more seriously, he was stabbed to the left side of his body. There is no suggestion that the appellant was responsible for that, but he was part of the violent disorder during which it happened.

Mr McCauley suffered a life-threatening stab wound to the left lung and diaphragm. He lost half a litre of blood. He also sustained a fracture of the left wrist. He has been left with permanent serious health issues, both physical and psychological.

The appellant was interviewed by the police a month later in September 2022. He admitted that he had been present but denied hitting anyone with a metal pole.

The first appearance in the magistrates' court for all three defendants was not until ten months later, on 27 July 2023. By then the appellant was 17 years old, as was the co-defendant, Bradley Case. Adam Ballenger was by then 19. All three defendants were sent to the Crown Court for trial.

At the plea and trial preparation hearing (PTPH) on 24 August 2023, the appellant and Adam Ballenger both pleaded not guilty to violent disorder, and their case was adjourned for trial. By contrast, Bradley Case pleaded guilty to the violent disorder and to possessing an offensive weapon. He was remitted to the Youth Court for sentence. Had the appellant pleaded guilty at that stage, he too would almost certainly have been remitted to the Youth Court for sentence, as he too had no previous convictions.

Bradley Case was duly sentenced in the Youth Court on 16 November 2023 to an intensive supervision Referral Order with a contract period of 12 months.

There was a lengthy delay in the listing of the appellant's trial for violent disorder, but eventually it came on for hearing on 2 December 2024. On the day of trial the appellant changed his plea to guilty on both counts (violent disorder and possessing an offensive weapon). His pleas were tendered on a basis which the prosecution accepted.

Adam Ballenger was still maintaining his not guilty pleas, and the appellant's sentencing was put back until the conclusion of Ballenger's trial. He, too, eventually pleaded guilty to violent disorder, and so it was that he and the appellant were both sentenced together on 25 April 2025 as we have indicated.

Ballenger was by then 21 years old. The appellant was then aged 18 and a few weeks short of his 19^th birthday.

The judge concluded that the violent disorder was a category 2B offence under the relevant Sentencing Council guideline, with a starting point for an adult of two years' custody and a range of one to three years. The co-defendant Ballenger had a bad record and had also pleaded guilty to breach of a Criminal Behaviour Order. In his case the sentence imposed was 30 months' imprisonment, which was ordered to run consecutively to another sentence he was already serving.

The judge acknowledged that the appellant was only 16 years old at the date of the offences and was still only 18 at the date of sentence. The custodial sentence the judge imposed was 20 months, two-thirds of the sentence of 30 months which would have been appropriate in the judge's view for an adult. It seems clear to us that the reason for the judge's reduction was principally the appellant's young age at the time, mindful of the guidance in the then current Sentencing Council overarching guideline for the sentencing of children and young people.

The judge then considered whether the sentence of 20 months could be suspended. He conducted a careful balancing exercise of the factors for and against suspension, in accordance with the Sentencing Council guideline on the imposition of community and custodial sentences. He concluded that the sentence could be suspended.

There was an impressive character reference from the appellant's aunt. The author of the pre-sentence report was of the view that since the offence the appellant had matured considerably. He had been in no further trouble; he had completed a barbering and hairdressing course and had worked for a while in an apprenticeship before funding ended. The author of the pre-sentence report acknowledged that immediate custody was a real possibility, but as an alternative recommended a two year community order with a rehabilitation activity requirement of 30 days and an unpaid work requirement. The author suggested that if a custodial sentence was inevitable, the court might consider it appropriate to suspend the sentence with the same requirements. That is the course which the judge ultimately took.

Miss Toal submits that the judge paid insufficient regard to the fact that the appellant was only 16 years of age when the offence was committed. She relies on recent authority from this court in R v Ahmed [2023] EWCA Crim 281. In that case the court was concerned principally to give guidance on the sentencing of adults who have committed historic offences many years earlier when they were children, emphasising that the starting point must be the sentence which would have been appropriate at the time of the offence. That is not really the position here.

More pertinent is the guidance given by this court in R v Ghafoor [2002] EWCA Crim 1857, which was approved in Ahmed:

In the course of her oral submissions, Miss Toal told us that she had referred the judge to Ahmed and had drawn his attention to these principles, in general terms at least. Had the court been considering a custodial sentence for the appellant when he was aged only 16, it could not have been suspended. A custodial sentence would have had to be a Detention and Training Order. It is submitted, therefore, that the likelihood is that a community sentence would have been imposed had the appellant been sentenced at the age of 16.

Miss Toal also submits– and this was another submission she made to the judge – that the court should have regard to the sentence imposed on Bradley Case, who was a few months older than the appellant and who was remitted for sentence to the Youth Court, as we have explained. He received a Referral Order. Miss Toal submits that had the appellant pleaded guilty at the PTPH, as Bradley Case did, the likelihood is that the appellant too would have been remitted to the Youth Court and that he too would have received a Referral Order. Consequently, it is suggested, an element of unfair disparity has arisen between the two defendants.

There is some support for such an approach in the decision of this court in R v Thomas [2020] EWCA Crim 822, a case which we drew to Miss Toal’s attention. There a similar issue of disparity arose where one defendant who turned 18 during the proceedings was sentenced in the Crown Court to a community order, whereas five co-defendants (who were very slightly younger) had been remitted to the Youth Court for sentence and were all made the subject of Referral Orders. The offence in that case was far less serious. It was one of using threatening, abusive or insulting words or behaviour, contrary to section 4 of the Public Order Act 1986, rather than the far more serious offence here of violent disorder. This Court allowed the appeal against sentence and substituted less onerous requirements in the community order, which broadly mirrored the terms of the Referral Orders for the other defendants in the Youth Court. In that case however – and this is a material distinction – what had arisen and caused the problem was simply the coming of age of the appellant in question, as compared with his co-accused. The problem was not caused, as here, by a tactical decision to plead guilty or not to plead guilty at any particular stage.

This morning, Miss Toal pressed upon us the mitigation which she had placed before the judge, notably the appellant's young age at the time of the offences and the steps he had taken in the intervening three years, before he came to be sentenced, to change his life. She told us that he has already carried out some 80 to 90 hours of the unpaid work requirement, and some perhaps of the rehabilitation activity requirement days, although she was not able to assist us with precisely how many.

We have considered all these submissions carefully, but we are unable to accept that there was any error of principle in this case, or that the sentence imposed was manifestly excessive. The fact is that the appellant had the opportunity to plead guilty at the plea and trial preparation hearing. Instead, he maintained a not guilty plea until the day of trial. That is the sole reason why he had to be sentenced in the Crown Court, rather than in the Youth Court.

Viewed in terms of disparity, a right thinking member of the public with knowledge of the full facts and circumstances of the case would readily understand why one defendant who was 16 years old at the time received a Referral Order in the Youth Court, while the other 16 year old received a suspended sentence in the Crown Court. It would not be an indication that something had gone wrong with the administration of justice.

Applying the guidance in Ghafoor, a non-custodial sentence might have been the starting point had the appellant been sentenced at the time of the offences when he was still only 16, but it was only a starting point. The appellant played a significant role in the violent disorder. The offence clearly passed the custody threshold. The judge was entitled to conclude that the seriousness of the offence had to be marked by a custodial sentence, albeit that the sentence could be suspended.

We are not persuaded that the sentence the judge passed was either wrong in principle or manifestly excessive. The appeal must, therefore, be dismissed.

We note that in error the sentence announced by the judge, as appears in the court record, was a suspended sentence of imprisonment, whereas it should have been a suspended sentence of detention in a young offender institution. We direct that the court record be amended accordingly.