R v Corey Burkitt

The applicant is now 17. On 13 February 2024, in the Crown Court at Wolverhampton, he was convicted of murder. Two days later, on 15 February 2024, he was sentenced by Wall J to detention at His Majesty’s Pleasure with a minimum term of 15 years.

The applicant had previously pleaded guilty to one offence of having a bladed article in a public place (count 3). That was the machete that was used to kill the victim, Joseph Richards. On that count the judge passed a term of 12 months’ detention to run concurrently with the 15-year minimum term; in other words, the sentence on count 3 did not add to the overall term being served by the applicant.

The issue that arises concerns only that concurrent term of 12 months’ detention, so it does not in any event affect the overall term imposed on the applicant. In those circumstances, it is unnecessary to set out any detail about the tragic murder of Joseph Richards, early on a summer’s evening in July 2023, in Stourbridge in the West Midlands.

The sentence of 12 months’ detention in respect of possession of the bladed article was unlawful. There are a number of reasons for that.

First, the applicant was only 16 years at the time of the sentence and it is accepted by the Crown that the offence of having a bladed article did not meet the criteria of section 250 of the Sentencing Act 2020. In those circumstances, given the applicant’s age, no order for detention was available for count 3.

Moreover, although a 16-year old can be sentenced to a detention and training order, the criteria required before such an order can be made are not present here. Furthermore, this Court has said on a number of occasions that the making of concurrent or consecutive detention and training orders in circumstances like this is inappropriate.

Thus, in R v JC (Carroll) [2004] EWCA Crim 1367, this Court said at [26] that a DTO “cannot be added as a consecutive sentence to a sentence of detention in a young offender institution”. In R v Dacus [2020] EWCA Crim 1879 at [8] this Court said that “if someone is sentenced to a lengthy period of detention [as in this case], it is not usually appropriate to pass a concurrent sentence of a DTO for obvious and practical reasons.” Most recently in R v NH [2023] EWCA Crim 241, a case with very similar facts to this one, a concurrent term of 2 years’ detention in a YOI, for possession of a bladed article, was quashed and a sentence of no separate penalty was imposed.

When Sir Nigel Davis considered these papers, pursuant to section 31, he referred the matter to the Full Court “so that no separate penalty can be substituted on ground 3.” We respectfully agree that that is the right course here, that the sentence of 1 year’s detention on count 3 concurrent should be quashed and replaced with no separate penalty.

Furthermore, in case there is any doubt about it, that order also meets the justice of this situation full on. That is because the fact of possession of the machete led, quite properly, to a longer minimum term for murder than otherwise would have been imposed. The judge explained that clearly in his sentencing remarks:

“18.

I will pass concurrent sentences on all of you on count 3, the possession of the machete. This is the factor which dictates the starting points for the murder minimum terms and I do not double count it by using it again in fixing the overall term you must serve.”

Thus, for this appellant, the offence of having a bladed article (count 3) had already been taken into account by the judge when he came to fix the starting point for the minimum term he imposed for the murder of Joseph Richards. He rightly did not double count it when considering count 3 - that is why count 3 was concurrent.

In those circumstances, because the detention order was unlawful, the right order on count 3 is no separate penalty. To that very limited extent, this appeal is allowed.