England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice Strand London, WC2A 2LL
		24th October 2013

1. MR JUSTICE BLAKE: On 18th April 2013 in the Crown Court at Birmingham, this appellant was sentenced by Mr Recorder Qureshi to a total of 20 months' imprisonment on five counts of burglary. At the same time a victim surcharge order in the sum of £80 was imposed. The judge then decided to exercise his powers to sit as a district judge and order that the victim surcharge order be remitted to 1 day's imprisonment and therefore be deemed to have been served. It appears that on the subsequent occasion on 8th May 2013, the Recorder of Birmingham directed that that sentence should stand with respect to the victim surcharge and should not be amended under the slip rule.
2. There was then an appeal against sentence. As to the sentence for the burglary offences, permission was refused and it has not been renewed before us. The single judge however has granted leave solely in respect of the victim surcharge and that is now before us without a representation order having been made.
3. This is not the first time that this court has had to deal with problems arising by the imposition of a victim surcharge order. However, the principles ought by now to be clear to those sentencing in the Crown Court and advocates appearing in such cases.
4. The mandatory surcharge can only be made where every offence for which the appellant has been sentenced was committed after 1st October 2012. If any one of the offences occurred before 1st October 2012, then the previous regime applies and a surcharge should only be made if the sentence included a fine. Those principles have been made plain on more than one occasion but most recently by the decision of this court in R v David Stone [2013] EWCA Crim 723, at paragraphs 50 to 17. The court there expressed its concern of the number of occasions with which these problems were coming before the courts and urged care be taken by all those concerned in the sentencing process to ensure that the principles were correctly applied. Sadly, that did not happen in this case.
5. It did not happen in this case because one of the burglaries that was the subject of this indictment had occurred on 1st September 2012 and thus predated the 1st October 2012. No victim surcharge therefore fell to be made automatically and it could not be made, as a matter of discretion, because the sentence did not include a fine. Further, for completeness we should point out that the powers to direct that a period in custody should count towards the victim surcharge may have been misunderstood.
6. Section 139 of the Powers of Criminal Courts (Sentencing) Act 2000 empowers the fixing of a default term for a fine but it has not been amended to include victim surcharges. It is therefore not permissible to fix a term in default in these circumstances.
7. There is of course power to give time to pay. That is provided under section 141 of the Powers of Criminal Courts (Sentencing) Act, through the insertion into it of paragraph 13 of Schedule 9 of the Administration of Justice Act 1970. It therefore appears that the judge's attempt to mitigate the effect of the victim surcharge was also unlawful. We again have been referred to the recent authority of this court on that point, namely R v John Burke [2010] EWCA Crim 1092, at paragraph 16 and 17.
8. In the circumstances the surcharges imposed in this case are quashed. To this extent this appeal is allowed.