England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT

		Royal Courts of Justice Strand London WC2
		24th September 2004

1. MR JUSTICE JACKSON: This is a claim for judicial review of an order made by the Chichester Crown Court. The facts giving rise to this claim are as follows. The claimant was working as a lorry driver on 28th February 2004. In the course of his duties he arrived in Bognor Regis. He approached a young lady called Stacey Nunn, who was a 16 year old student, requesting directions. Having walked up to her, he squeezed her right buttock and made an improper remark.
2. The following month, on 8th March 2004, the claimant was in Hayling Island in the course of his duties. He was driving through a holiday village when he gestured to a young lady called Julia Murray. He got out of his lorry and approached her. He asked her where the nearest toilets were and then reached out and touched her buttock. He made an improper remark. Miss Murray jumped out of the way when she felt the touch. The claimant asked if he could have another rub and Miss Murray refused.
3. A short time later in the same area he was standing by his lorry when a young lady called Miss Natalie Dolan crossed in front of him. The claimant made an improper remark to her, she walked past him, he touched her left buttock and again made inappropriate remarks. On 10th March this year, the claimant was arrested and charged with three offences of indecent assault contrary to section 14(1) of the Sexual Offences Act 1956. The first offence was indecent assault upon Miss Stacey Nunn. The second offence was indecent assault upon Julia Murray and the third offence was indecent assault upon Natalie Dolan.
4. The claimant initially denied these charges. However, he changed his pleas to guilty at a pre-trial review on 22nd April 2004 at the Chichester Magistrates' Court. The magistrates on that occasion decided to retain jurisdiction and did not commit the claimant for sentence to the Crown Court. The magistrates adjourned the criminal proceedings in order that reports could be prepared. A pre-sentence report was duly prepared and the matter came on for sentence on 2nd June 2004.
5. The claimant appeared before the Chichester magistrates on that occasion. The magistrates imposed the following sentences. Offence one, four months' imprisonment; offence two, two months' imprisonment; offence three, two months' imprisonment. Those sentences were ordered to run consecutively, making a total of 8 months. It should be noted that the victim in the first case was a young woman of 16. The victim on the second and third offences was in each case an adult and that fact may have played a part in the differentiation made by the magistrates in the sentences imposed.
6. Since the magistrates had a maximum sentencing power of 12 months, there was clearly scope within the sentence imposed for a discount for the plea of guilty. It is clear that the magistrates did make such a discount in arriving at their total sentence.
7. On the same day, the claimant gave notice of appeal to the Crown Court against sentence. The grounds of appeal as set out in that notice were that the sentence imposed was wrong in principle given the following:

"i) The appellant's guilty pleas and previous good character.

"ii) His current job and family circumstances.

"iii) His evident suitability for a CRO as outlined in the PSR.

"iv) That the two offences on 8th March arose from the same sequence of events but were made consecutive."

8. The claimant's appeal was listed for hearing at the Chichester Crown Court on the following day, namely 3rd June. The appeal was heard by Judge Thorpe sitting with justices. The Crown Court rejected the claimant's grounds of appeal and concluded that the sentence imposed was too lenient. Accordingly, the Crown Court increased the sentence to one of 12 months' imprisonment made up as follows: offence one, four months; offence two, four months; offence three, four months. Those sentences were to run consecutively, making a total of 12 months' imprisonment.
9. In announcing the court's decision, His Honour Judge Thorpe said as follows:

"...we have carefully considered this appeal. It is quite clear that those who indecently assault young women, and particularly those under 18, must expect and will receive immediate custodial sentences of some length because the offences are so serious that no other form of penalty can be accepted and it would horrify the public if other sentences were passed.

"You were unduly leniently dealt with in the court below. You should have been sent here to be dealt with by a Crown Court judge and we make it quite clear that the sentence passed was inadequate to reflect the gravity and the pattern.

"As the pre-sentence report rightly said, you pose an immediate risk of committing further sex offences.

"The decision of this court is that the sentence in the court below will be varied to four months on each to run consecutively to one another, that is a total of 12 months' imprisonment."

10. The claimant was aggrieved by the decision of the Crown Court and commenced the present proceedings for judicial review.
11. By a claim form filed on 1st September, the claimant applied to the High Court for an order quashing the decision of the Chichester Crown Court and substituting a lesser sentence. The grounds were:

"1) The decision to increase the sentence to the maximum of 12 months was one that no reasonable tribunal could have made.

"2) The decision to impose consecutive sentences was one that no reasonable tribunal could have made.

"3) Mr Lees-Sandey seeks a quashing order in respect of the decision of Chichester Crown Court in increasing the sentence to the maximum of 12 months by way of consecutive sentences."

12. The matter was considered on the papers by Ouseley J who granted permission to proceed with the claim for judicial review and who directed that this matter should be heard by the Divisional Court. The claimant's claim for judicial review comes on for hearing today before the Divisional Court.
13. Mr Selby, who appears for the claimant, submits that there were three errors of law made by the Crown Court. One, the sentence imposed by the Crown Court was so long and so far beyond a proper sentence as to be outside the jurisdiction of the Crown Court, or so as to constitute an error of law. Two, it was wrong in principle and erroneous in law to impose consecutive sentences in respect of offence two and offence three, because they were committed close to one another in time and formed part of the same sequence of events. Three, the learned judge, HHJ Thorpe, erred in principle in taking into account and apparently being influenced by the proposition that the Magistrates' Court had erred in failing to commit the claimant for sentence to the Crown Court.
14. As far as the first of Mr Selby's submissions is concerned, I have come to the conclusion that he is in difficulties. This court does not sit like the Court of Appeal in order to reduce sentences which are manifestly excessive. This court is sitting in a reviewing capacity and it will only quash a decision of the Crown Court if the court made an order which was beyond its jurisdiction or wrong in law; see R v Truro Crown Court ex parte Adair [1997] Crown Office Digest 296. In that case Lord Bingham of Cornhill Lord Chief Justice said this:

"The court has on previous occasions suggested a test of whether the sentence in question is regarded by any acceptable standard as truly astonishing. I would, for my part, question whether that is an ideal test since some people are more readily astonished than others and it would appear to be a somewhat subjective approach. It would perhaps seem more helpful to ask the question whether the sentence or order in question falls clearly outside the broad area of the lower court's sentencing discretion."

15. The Divisional Court considered this same question subsequently in R v DPP ex parte McGeary [1999] Crim LR 430. In that case, the Divisional Court observed that it was not enough for the party applying for judicial review to demonstrate that the sentence imposed by the Crown Court was surprisingly severe or unduly severe. It was necessary that the sentence should be wrong in law or in excess of jurisdiction. The Divisional Court also said on that occasion that the departure of the sentencing court from the normal standards or levels or practice of sentencing must be so great as to constitute an excess of jurisdiction or an error of law.
16. For my part, I do not think that it can be said that a sentence of 12 months' imprisonment for these three offences of indecent assault was so long that this court can interfere simply on the grounds of length of sentence.
17. I turn now to Mr Selby's second submission, that the Magistrates' Court erred in law in imposing consecutive sentences in respect of offences two and three. I am not persuaded by that submission. It is true that offences two and three were committed close together in time. However, there were two separate victims of those two offences and they both suffered distress and humiliation. The fact that the claimant had committed one offence of indecent assault on Hayling Island that day did not create, so to speak, a licence for him to commit a second similar offence against someone else for no additional penalty. I quite accept that sometimes, in dealing with offences of this nature, the court will group them together and impose concurrent sentences. What the sentencing court is trying to do on such occasions is to arrive at a total sentence which is proper having regard to the totality of the offender's conduct.
18. Such an approach was adopted by the Court of Appeal in Amin [1998] 1 Cr App R(S)63, an authority upon which Mr Selby places reliance. Nevertheless, I do not consider that Amin gave rise to some rule of law or principle which necessitated concurrent sentences being imposed in the present case in respect of offence two and offence three.
19. I come now to Mr Selby's third ground of claim. It can be seen from the judge's sentencing remarks that Judge Thorpe took the view that the Magistrates' Court had fallen into error on 22nd April when the Magistrates' Court decided to retain jurisdiction and not commit for sentence. The magistrates, having decided to retain jurisdiction, had in their power a maximum sentence of 12 months' imprisonment which they could impose. The magistrates no doubt took the view that some discount from the maximum should be made in order to reflect the plea of guilty. If the magistrates had imposed a sentence of 12 months' imprisonment, that sentence would have been very surprising, although not wrong in law.
20. I say it would have been very surprising for this reason. Section 152 of the Powers of Criminal Courts (Sentencing) Act 2000 requires any sentencing court to take into account the fact of a plea of guilty and the stage at which that plea was entered. Statute does not expressly provide that the sentencing court must make a discount for a plea of guilty. Nevertheless, the Court of Appeal has, on many occasions, said that a discount for a plea of guilty is appropriate. Certainly I would have expected the Magistrates' Court in the circumstances of this case to grant a discount for the plea of guilty in the region of one-quarter to one-third of the sentence which would otherwise be imposed.
21. One then comes to the question why did the Crown Court substitute a sentence which, if passed by the magistrates, would have been most unusual and most surprising? The answer to that question is this: the Crown Court considered that the magistrates had made an earlier error in retaining jurisdiction when they should have committed to the Crown Court. In my judgment, the decision whether or not to commit to the Crown Court was water under the bridge by the time that the claimant's appeal against sentence came on for hearing. It was not the Crown Court's function to redress what it perceived as some earlier procedural error made by the Magistrates' Court.
22. In the result, therefore, I consider that the Crown Court made an error of law. The Crown Court was influenced by an irrelevant consideration, namely the perceived procedural error of the magistrates on an earlier occasion, and furthermore the Crown Court was influenced by that irrelevant consideration to increase sentence from 8 months' imprisonment to 12 months' imprisonment. The latter sentence is one which it would have been most surprising and most unusual for the magistrates to impose.
23. For these reasons I accept the third of Mr Selby's submissions and, for my part, I consider that the proper order is an order that the decision of the Crown Court be quashed. What sentence should then be substituted? The three offences of indecent assault committed by the claimant clearly merited an immediate custodial sentence. The sentence imposed by the magistrates was a perfectly proper one arriving at a total of 8 months' imprisonment. That total sentence could have been reached in a number of different ways. I consider that the total sentence was a proper one and the manner in which the magistrates built it up was a perfectly proper one.
24. In those circumstances, if my Lord agrees, the decision of the Crown Court will be quashed and there will be substituted the original sentence of the Magistrates' Court, namely 8 months' imprisonment, comprising four months plus two months plus two months, to run consecutively.
25. MR JUSTICE MOSES: I agree. The order of the court will be that the sentence of the Crown Court will be quashed and the total sentence made out as my Lord has indicated of 8 months to be substituted. Is there any other relief you want, Mr Selby?
26. MR SELBY: No, my Lord.
27. MR JUSTICE MOSES: Thank you very much.