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England and Wales Court of Appeal (Criminal Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Criminal Division) Decisions >> Walton, R. v [2011] EWCA Crim 2832 (08 November 2011)
URL: http://www.bailii.org/ew/cases/EWCA/Crim/2011/2832.html
Cite as: [2011] EWCA Crim 2832
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CRIMINAL DIVISION
Strand London, WC2A 2LL |
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B e f o r e :
MR JUSTICE WALKER
MR JUSTICE SINGH
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| R E G I N A | ||
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| ANDREW WALTON |
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Miss K Mercer appeared on behalf of the Crown
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- LORD JUSTICE MOSES: This is an appeal which raises the issue of the error in joining a count of common assault to other counts wrongly. The applicant, to whom we give leave, pleaded guilty to common assault on one count of an indictment at Sheffield Crown Court on 3rd March 2011 and pleaded guilty on another count to handling stolen goods. Subsequently, and finally on yet another occasion, he pleaded guilty to breach of a suspended sentence that had been imposed for attempted theft on 1st December 2009.
- He was being questioned for handling stolen goods, the precise facts of which do not matter, with a legal representative present and this appellant behaved in a way that nobody should, least of all a man who is now aged 42, well experienced in criminal courts. He started abusing the police officers, one of whom was PC Middleton, and although she asked him to calm down he then threw a hard plastic slipper-type shoe at her, causing her to be frightened and shocked and causing some soreness on the chest.
- There is clear authority for the proposition that that offence of common assault could not be joined with the other offences. It did not arise out of the same facts or evidence as the offence of handling stolen goods, nor was it part of a series of offences of the same or similar character - see section 40(1) of the Criminal Justice Act 1988. In those circumstances the count of common assault was wrongly joined. If authority is needed for that proposition, other than the statutory authority to which we have referred, it is to be found in R v Hopton Lewis (1992) 95 Cr.App.R page 131 in the judgment of Farquharson LJ.
- The result is that the sentence of four months' imprisonment consecutive which was passed for the common assault must be quashed. The appellant received six months' imprisonment for handling stolen goods consecutive to the four months for common assault and two months' imprisonment in respect of the breach of the suspended sentence. Mr Hughes does not contend that the other sentences were manifestly excessive. But he does contend, and we agree, that it would be wrong to re-distribute the four month sentence so as to increase the sentence for handling stolen goods, even though technically there is power to do so, as long as the total is not exceeded pursuant to section 4 of the Criminal Appeal Act 1968. We see no basis for doing so, even though the appellant admitted that he had assaulted the police officer.
- The consequence is that count 3 of common assault on that indictment will be quashed and the sentence of four months' imprisonment will be quashed. The other sentences of six months plus two months remain, making a total of eight months' imprisonment.