England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice Strand London, WC2
		2 November 2007

Lord Justice Hooper:

These cases have been heard together because they relate to a similar point. Mr Justice Pitchford will deal with the law and then deal with the facts in the case of Burbridge and Parkes, and Mrs Justice Dobbs will deal with the facts in the case of Majury.

Mr Justice Pitchford:

1. These are applications for leave to appeal against sentences of 18 months' imprisonment referred to the full court by the Registrar. We grant leave.
2. On 4 June 2007, at Wolverhampton Magistrates' Court, the appellants pleaded guilty to five charges of theft by shoplifting.
3. In brief the circumstances were these. At about 6pm on 4 June 2007 officers were called to a Sainsbury store situated in Wolverhampton when it was reported that two shoplifters had been detained. When the officers arrived they were told that both appellants had taken meat from the store and placed it in their bags. Both of them walked towards the till where Burbridge paid for some cat food. They then returned, put the meat back and left the store. At that point they were detained. During their detention a large quantity of stationery goods was found in both their shopping bags.
4. In interview, Parkes conceded that she had also been involved in thefts from other stores. She made a full and frank admission and went on to say that she intended taking the items from Sainsbury's also on the same day. Burbridge, on the other hand, answered "no comment". However, they both pleaded guilty at the first opportunity when they appeared before the magistrates. The total value of items taken was £690.
5. It came to the attention of the justices that the offences had been committed in breach of a suspended sentence imposed upon both women by the Crown Court on 24 August 2006, also for an offence of theft by shoplifting.
6. On 13 July 2007, in the Crown Court at Wolverhampton, the appellants were sentenced by Mr Recorder Morse: Miss Burbridge to 15 months' imprisonment and Miss Parkes to 15 months' detention in a young offender institution upon each new charge of theft, concurrent, and twelve weeks, consecutive, for breach of the suspended sentence order, making 18 months in all.
7. The appellants gave notice of application for leave to appeal against their sentences on the conventional ground that they were manifestly excessive. However, the Registrar's office noticed that the sentences might have been unlawful.

The Law

8. The justices committed the appellants to the Crown Court under the provisions of Schedule 12 to the Criminal Justice Act 2003 . A letter from the Clerk to the Justices' Department establishes, after an examination of the court register, that both were committed under the provisions of paragraph 8(6) in respect of the breach, and under the provisions of paragraph 11(2) in respect of the five new offences. In this it is our view that the justices fell into error.
9. Paragraph 8(6) applies only to a breach of a suspended sentence order with which the magistrates themselves can deal. Magistrates can deal with breach of a suspended sentence passed by a magistrates' court, or where the breach comprises a failure to comply with a community requirement in a suspended sentence order and the Crown Court directed when the sentence was passed that failures to comply should be dealt with by the magistrates' court: see paragraph 6(2) and paragraph 11(1) . Paragraph 8(6) does not apply to breach of a suspended sentence when the sentence was passed by the Crown Court and the breach is comprised in the commission of a further offence. Furthermore, paragraph 11(2) does not apply to new offences committed in breach of the suspended sentence. The subparagraph reads as follows:

"Where an offender is convicted by a magistrates' court of any offence and the court is satisfied that the offence was committed during the operational period of the suspended sentence passed by the Crown Court —

(a) the court may, if it thinks fit, commit him in custody or on bail to the Crown Court, and

(b) if it does not, must give written notice of the conviction to the appropriate officer of the Crown Court."

If the offender is committed to the Crown Court, then the Crown Court can deal with the breach under Schedule 12, paragraph 8(1)(b) : see paragraph 11(1) . If the offender is not committed to the Crown Court, but the Crown Court receives notice of the breach, it can take its own enforcement proceedings by issuing a summons or a warrant for his arrest under paragraph 12(1) .

10. Paragraph 11(2) is the successor to s.120(2)(a) of the Powers of Criminal Courts (Sentencing) Act 2000 . It does not of itself give to the Crown Court the power to deal with the offences committed during the operational period of the suspended sentence. It is the means by which the breach of the suspended sentence is brought before the Crown Court to be dealt with under paragraph 8(1)(b) .
11. The justices undoubtedly intended that all matters should be committed to the Crown Court for sentence at the same time. The new offences were triable either way. What the justices should have done was to decide whether the powers of the Crown Court to sentence for the five new offences should be those of the Crown Court or of the magistrates' court. If the former, then the committal of those offences would take place under s.3 of the Powers of Criminal Courts (Sentencing) Act 2000 . If the latter, committal would be under s.6 of the same Act.
12. It is apparent that the justices did indeed consider whether to commit under s.3 , but decided that their own powers of sentencing were sufficient. Had they wished, they could have sentenced for the five new offences and then committed the appellants to the Crown Court to be dealt with for the breach of the suspended sentence under paragraph 11(2) . Instead, they chose to leave the whole sentencing process to the Crown Court. That was undoubtedly an appropriate course to take but they committed the applicant to the Crown Court mistakenly believing that they were achieving that result by committing under paragraphs 8 and 11 .
13. Having considered the circumstances of the committal during the course of the hearing of this appeal, counsel are prepared to treat the appeal as one in which a lawful committal took place, but that the powers of the Crown Court in respect of the new offences should be limited to those of the magistrates, which of course is the effect of a committal which takes place under s.6 of the 2000 Act.
14. By s.78 of the Powers of Criminal Courts (Sentencing) Act 2000 , and s.133 of the Magistrates' Courts Act 1980 , the magistrates', and therefore the Recorder's, powers were limited to six months' custody in respect of any one offence, and twelve months in aggregate, since these were either way offences.

The Grounds of Appeal

15. Each of the appellants was addicted to Class A drugs and alcohol. All manner of non-custodial or supportive orders had been tried in the past. Miss Burbridge is aged 26. She has 18 previous convictions, mostly for theft. Miss Parkes is aged 20. She has twelve convictions for theft and one for handling stolen goods. While the Recorder was invited by the pre-sentence reports to consider community sentences, we do not consider that he can be criticised for imposing custodial sentences in the present circumstances.
16. We have looked at the overall offending. We consider that the appropriate total sentence in each case was one of nine months' custody, which we propose to achieve as follows: in the case of each appellant we shall substitute sentences of six months upon each of the new offences, concurrent with each other, and twelve weeks, consecutive, for breach of the suspended sentence, making nine months in all. In Miss Burbridge's case, the sentence is one of imprisonment. In Miss Parkes' case, the sentence is one of detention in a young offender institution. To that extent the appeals are allowed.

Mrs Justice Dobbs:

R v Scott William Majury

17. On 5 June 2007, at the Preston Magistrates' Court, the applicant, Scott William Majury, who is aged 21, pleaded guilty to criminal damage, making threats to kill and two offences of common assault. He admitted that these offences had been committed during the operational period of a suspended sentence of 32 weeks' imprisonment imposed on 18 December 2005 at the Preston Crown Court for an offence of handling stolen goods. He was committed to the Crown Court for sentence on all matters. On 2 June 2007, at the Preston Crown Court he was sentenced as follows: for common assault, eight weeks' detention in a young offender institution; for a second offence of common assault, eight weeks' detention, consecutive; for an offence of making threats to kill, 76 weeks' detention, to run consecutively; for criminal damage, one week's detention, to run concurrently, making a sentence of 92 weeks' detention in a young offender institution. The suspended sentence was activated in full and ordered to be served consecutively to the period of 92 weeks. The total sentence was therefore 32 weeks, plus 92 weeks, a total of 124 weeks' detention in a young offender institution. The applicant's application for leave to appeal against sentence was referred to the full court by the Registrar. We grant leave.
18. The facts are these. EW (who was aged 16) had been in a relationship with the appellant. She became aware that the appellant was involved with other females and therefore ceased the relationship. She had a male friend who was in Preston Prison. She looked after his flat and visited him from time to time. Due to her age she attended with an appropriate adult. On 30 May she visited the prison with Jane Whittley (aged 28). On leaving the prison they were approached by the appellant, who became aggressive, because he was unhappy about the fact that EW was visiting her male friend. At one point a pregnancy test stick fell on the floor. This enraged the appellant even further. EW said it wasn't hers. He pulled at EW's clothing, grabbed hold of her left arm and said, "You'd best get out of my face before I hit you". EW stood between the appellant and Miss Whittley, but the appellant pushed past her and assaulted Miss Whittley. He pushed her in the back and hit her several times. He then punched out at a prison wall and punched a passing bus window. He grabbed hold of Miss Whittley and slammed her into the prison wall. On hearing police sirens, he ran off.
19. The complainants accompanied the police to the police station. Whilst there, EW received calls from the appellant on her mobile phone. She put the phone on loud speaker and officers could hear the appellant using threatening words towards her, saying that he would petrol her home and kill her.
20. He was arrested. He wrote a number of foul messages on the wall of his cell and damaged the mattress. When he was interviewed he said that he had visited EW's mother two weeks earlier and that the relationship had ended, as EW wanted to visit an ex-partner in prison. When he saw her on that day she said that she had been out all day. He apologised for "going mad and kicking off".
21. The appellant has nine previous convictions dating back to 2003. They include one for assaulting a constable and one for having a bladed article in a public place.
22. The pre-sentence report indicated that, as a young man, the appellant had been attacked and suffered significant head injuries. He had been in a coma for five months and it seems that he had never fully recovered from his injuries. Moreover, he had received no counselling to help him to come to terms with the assault. He had tried to self-harm in 2003 and was recently admitted to hospital after taking an overdose. His risk of re-offending was assessed as medium, although it was noted that he had co-operated with orders in the past and had attended all of his appointments with regard to his probation order. He appeared highly motivated to change.
23. The original grounds of appeal were that the judge should not have imposed the whole period of the suspended sentence, which had been imposed for a different offence. The appellant was making good progress and thus some reduction should have been made. In the light of the procedural problems in this case, the additional grounds are otiose.
24. This case was referred to the full court by the Registrar as it was noted that the judge may have passed sentences that were not open to him in the light of the committal. The legal adviser to the magistrates' court indicated to the Registrar that the magistrates had considered their powers to be sufficient to deal with the appellant, but that because of the breach of the Crown Court suspended sentence they had committed the appellant under paragraph 8(6) of Schedule 12 to the Criminal Justice Act 2003 for the suspended sentence, and under paragraph 11(2) for the new offences.
25. Counsel are agreed that in the light of the evidence before us the appellant should be treated as committed under s.6 Powers of Criminal Courts (Sentencing) Act 2000 under which the judge's powers were restricted to a maximum of six months custody for the new offences.
26. The judge imposed a sentence of 92 weeks. He was entitled to activate the suspended sentence in full, but was restricted to 24 weeks (or six months) for the other offences. Therefore the maximum available to him was a sentence of 58 weeks, being made up of 24 weeks and 32 weeks of the suspended sentence.
27. In the light of the submissions that have been made to us, we have considered whether this figure should be further reduced. We are not persuaded that it should be. Although the recent convictions were for different offences, no doubt the instructions to the appellant were clear when sentence was imposed, namely, that any breach, whether it be for a similar or a different offence, would trigger the imposition of immediate custody for breach of the order. Whilst the pre-sentence report records that the appellant seems motivated to change, as the author noted, only time will tell whether he is able to make the necessary life-style changes to avoid offending.
28. We propose therefore to quash the sentences imposed for the offences for which the appellant was committed and substitute the following. For the two offences of common assault, there will be six weeks' detention in a young offender institution, to run consecutively; for the offence of making threats to kill, there will be three months' imprisonment to run consecutively; the sentence for the criminal damages will stand, namely one month in a young offender institution, which will run concurrently, making a total of six months' imprisonment. The suspended sentence will be activated to run consecutively to the six months, making a total sentence of six months and thirty two weeks' (58 weeks in all) detention in a young offender institution. To that extent this appeal against sentence is allowed.