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 WC2A 2LL
		27 June 2008

1. LORD JUSTICE RICHARDS: I will invite Keith J to give the first judgment.
2. MR JUSTICE KEITH: This is an appeal by way of case stated from the dismissal by Grimsby Crown Court on 9 November 2007 of the appellant's appeal against sentences of imprisonment imposed on the appellant at North Lincolnshire Magistrates' Court on 31 October 2007.
3. On 30 June 2006, the appellant was sentenced to four months' imprisonment, suspended for two years, for an offence of common assault, to which he had pleaded guilty. He was also sentenced to one month's imprisonment, suspended for two years, for offences of criminal damage and harassment under the Public Order Act 1986, to which he had also pleaded guilty, those terms to be served concurrently with each other and with the sentence imposed for the common assault. The suspended sentences were coupled with a supervision order for two years with various programme requirements. These offences had been committed against the appellant's former girlfriend, and the sentences are acknowledged to have been "well deserved". Indeed, today Mr Graham Pressler for the appellant has told us that the appellant could have counted himself fortunate that the terms of imprisonment were suspended.
4. In the afternoon of 12 August 2007, the appellant was stopped by the police while he was driving his father's car, which he had taken without asking his father for permission. He had only a provisional driving licence and was not accompanied by a qualified driver. In due course, he provided a specimen of blood which was found on analysis to contain 127mg of alcohol per 100ml of blood. The legal limit was 80mg of alcohol per 100ml of blood. The appellant claimed to have drunk only a single pint of lager shortly before being stopped by the police, and that it had not occurred to him that he might have been over the limit. He attributed the fact that he was over the limit to the residual effects of a heavy bout of drinking the evening before. He claimed that he had only driven a short distance, and that the "erratic" nature of his driving, which had caused the police to stop him in the first place, was simply because he had pulled over to one side of the road to give precedence to a police car.
5. In due course, he pleaded guilty to offences of driving a motor vehicle when the proportion of alcohol in his blood exceeded the prescribed limit, of driving otherwise than in accordance with the terms of his provisional licence, and of driving without insurance. The mitigation was his pleas of guilty which had been tendered at the earliest opportunity, the potential loss of his employment, the short distance he had been driving, and the absence of any bad driving. As a result of his pleas of guilty, he was in breach of the terms of the suspended sentences. The court was urged not to activate the suspended sentences in view of the dissimilar nature of the offences, the fact that there had been no contact with his former girlfriend, and no breach of the terms of the supervision order. Nevertheless, on 31 October 2007, the magistrates at North Lincolnshire Magistrates' Court activated the suspended sentences in full, and passed a consecutive sentence of one month's imprisonment for the offence of driving with excess alcohol, as well as disqualifying him from driving for 12 months. No separate penalty was imposed for the other two offences. The net effect was that, in addition to the disqualification, he was sentenced to terms of imprisonment totalling five months.
6. The appellant appealed to the Crown Court against his sentences. His appeal was heard at Grimsby Crown Court on 9 November 2007 by Judge Robinson and a lay magistrate. They dismissed the appeal, and although the appellant completed his sentence many months ago, it is the dismissal of that appeal which is the subject of this appeal by way of case stated. The two questions formulated on behalf of the appellant for the opinion of the High Court are these:

"(1) Is the activation of the suspended sentence unlawful or Wednesbury unreasonable having regard to the Sentencing Guidelines Council guidelines issued December 'New Sentences: Criminal Justice Act 2003'?

(2) As a matter of law, on what basis in imprisoning a defendant can the judge depart from the Magistrates Association guidelines and Sentencing Council guidelines?"

7. Two preliminary points arise in the light of arguments contained in the skeleton argument in support of the appeal, though not specifically referred to by Mr Pressler in his oral submissions. First, it is said that when dismissing the appeal, one of the things which Judge Robinson said was that the imposition of one month's imprisonment consecutive to the activated sentences could not be criticised. It is said in the skeleton argument that those words suggest that the Crown Court may have been reviewing the sentence rather than approaching the question of sentence afresh. I acknowledge, of course, that the function of the Crown Court on an appeal against sentence is not to consider whether the sentence imposed by the Magistrates' Court was within the ambit of the magistrates' discretion, but to determine for itself what the appropriate sentence is. But for my part I do not think that the words attributed to the judge suggest that the Crown Court fell into error in this regard; the words were just as consistent, perhaps even more so, with the Crown Court simply agreeing with the sentence imposed by the magistrates in the first place for the offence of driving with excess alcohol.
8. Secondly, it is said that the Crown Court took into account one particular irrelevant factor, namely that the appellant had taken the car without his father's consent when he had not been charged with an offence with regard to that taking. Looking at the Case Stated as a whole, I do not think that the Crown Court took that factor into account at all; it merely referred to that fact as part of its recitation of the facts.
9. The power to activate a suspended sentence when a further offence is committed within the operational period is to be found in paragraph 8 of Schedule 12 to the Criminal Justice Act 2003 ("the 2003 Act"). The court has a number of options. It may order the suspended sentence to take effect with its original term unaltered. It may order the suspended sentence to take effect with the substitution for the original term of a lesser term. It may decline to activate the suspended sentence, but instead to extend the operational period, and when the suspended sentence has been coupled with a supervision order, the court may impose more onerous requirements or extend the supervision period. However, the court is required to order that the suspended sentence takes effect, whether with the original term unaltered or reduced, unless it is of the opinion that it would be unjust to do so in view of all the circumstances, and those circumstances are expressly said to include the extent to which the offender has complied with the requirements of any supervision order which was coupled with the suspended sentence, and the facts of the subsequent offence which gave rise to the power to activate the suspended sentence. This bears some resemblance to section 119 of the Powers of Criminal Courts (Sentencing) Act 2000, which required the court to activate the suspended sentence with the original term unaltered unless it was of the opinion that it was unjust to do so in view of the circumstances, including the facts of the subsequent offence.

The current regime differs quite significantly from the one previously in place, which provided that a suspended sentence could not be imposed in the first place unless there were exceptional circumstances, and in which the power to deal with a breach only arose if the subsequent offence was itself punishable with imprisonment.

10. Section 172(1) of the 2003 Act requires courts, when sentencing offenders, to have regard to definitive guidelines issued by the Sentencing Guidelines Council. In December 2004, the Council issued a definitive guideline on the new sentencing framework introduced by the 2003 Act. Mr Pressler has said in his skeleton argument that the guidelines suggest that it may not be appropriate to activate a suspended sentence where the new offence does not warrant custody. That is not quite right. What the relevant paragraph (and it is paragraph 2.2.22) actually says is that if the new offence is not imprisonable, the sentencing court should consider whether it is appropriate to activate the suspended sentence at all. The offence of driving with excess alcohol is imprisonable, though the maximum length of the term is six months. Of relevance also is paragraph 2.2.19, which says:

"If an offender near the end of an operational period (having complied with the requirements imposed) commits another offence, it may be more appropriate to amend the order rather than activate it."

Having said that, though, as Judge Robinson said in the Case Stated, the appellant committed the offence of driving with excess alcohol when only just over half of the operational period had elapsed.

11. One other guideline should be mentioned. Guidelines issued by the Magistrates Association say that, for the offence of driving with excess alcohol, custody should be considered as an option in effect only if the concentration of alcohol in the offender's blood exceeded 265mg of alcohol per 100ml of blood, ie just over three times the legal limit. That guidance was approved as the basic starting point in the case of Shoult [1996] RTR 298. It follows that but for the suspended sentence, imprisonment for the offence of driving with excess alcohol would not have been appropriate in the appellant's case. Looking at that offence alone, it is unquestionably correct that the custody threshold had not been passed, though the all important feature of this case is that the offence was committed during the operational period of a suspended sentence.
12. The Case Stated sets out the process of reasoning of the Crown Court, and I wish to pay tribute to the care with which the Case Stated has been drafted, and the comprehensive nature of the reasoning which it contains. It referred to the appellant's previous convictions and findings of guilt before he committed the offences for which the suspended sentences were imposed. They included an offence of assault occasioning actual bodily harm, an offence of being drunk and disorderly, and four offences of criminal damage. The last offence of criminal damage resulted in the appellant being in breach of a community rehabilitation order, and he subsequently broke the terms of that order on two other occasions, for the second of which the community rehabilitation order was revoked, and he was re-sentenced for the four offences of criminal damage to a total of one month's detention in a young offender institution. The Case Stated also referred to the pre-sentence report on the appellant, which spoke of the link between alcohol on the one hand and his previous offending and violent behaviour on the other.
13. Moreover, the Case Stated shows that the Crown Court had in mind the obligation on it to activate the suspended sentence unless it was of the opinion that it would be unjust to do so in view of all the circumstances, including the extent to which the appellant had complied with the requirements of the supervision order and the facts of the later offence. As for the latter, the Case Stated described the appellant as having -

"... once more committed an alcohol related offence in circumstances considered by us to amount to him acting with reckless disregard for other road users:

• he ought not to have been in the vehicle on his own at all;

• he was under the influence of alcohol;

• the quantity of alcohol in his body was such as to put him 1.5875 times over the legal limit."

14. The Case Stated acknowledged that the offence had been committed in the hours of daylight, and that there was no evidence that the appellant had been putting any other road users in danger. But it went on to say that that represented little mitigation given the appellant's history of alcohol-related offending, and that the legal limit exists to prevent the risk of drink affected drivers making errors of judgment which they would not make when sober. The Case Stated also acknowledged the fact that the appellant was on his own in the car, therefore committing the offence of driving otherwise than in accordance with the terms of his provisional driving licence, but the Case Stated acknowledged that that was not of itself an imprisonable offence and therefore the Crown Court limited the impact of that offence to that of an aggravating feature of the offence of driving with excess alcohol.
15. As for the extent to which the appellant had complied with the requirements of the supervision order, the Case Stated shows that the Crown Court recognised that the appellant had not acted in breach of those requirements. However, his response to the supervision order had, the Case Stated said, been rather less than the court would have expected, bearing in mind that he had on three previous occasions breached the terms of the community rehabilitation order. In this context, it has to be noted that the Case Stated referred to the fact that, as a result of work commitments, the appellant's participation in a programme addressing domestic violence had been suspended. The Case Stated noted that the pre-sentence report had said that the appellant had allowed his employment to take priority over the requirements of the supervision order, which, according to the pre-sentence report, was something which he had said would not occur, and it was as a result of that that the author of the pre-sentence report expressed the view that the appellant's risk of re-offending had not been reduced.
16. Finally, the Case Stated shows that the Crown Court had paragraph 2.2.22 of the sentencing guidelines very much in mind. The court was aware that on its own the offence of driving with excess alcohol would have been dealt with by way of a fine, but the Case Stated noted that this was not an isolated offence. There were previous convictions for alcohol-related offences. There was a history of a failure to comply with community sentences. There was the absence of the expected commitment to the requirements of the supervision order, which had been coupled with the suspended sentence. And there was the fact that the offence was committed at a time when a significant proportion of the operational period was yet to expire. In my judgment, these factors were such as to justify the court's conclusion that it would not be unjust to activate the suspended sentence.
17. It is said that the Crown Court failed to give any weight to the appellant's pleas of guilty and when he first indicated his intention to plead guilty, factors which section 144(1) of the 2003 Act require the court to have regard to. However, the fact that his conviction was as a result of pleas of guilty was, as Richards LJ pointed out in the course of argument, expressly referred to in the Case Stated, and although the pleas of guilty and when a first indication of those intended pleas was given was not expressly referred to again, it is inconceivable that the court did not give what it considered to be appropriate weight to the pleas of guilty and the time when they were tendered, and on that basis it must be assumed that but for his early plea of guilty the sentence for the offence of excess alcohol might well have been in the region of six weeks' imprisonment.
18. A particular point taken in the appellant's notice, and one which Mr Pressler told us was still relied upon, was that although an offence does not have to be punishable with imprisonment for it to trigger the possible activation of a suspended sentence, nevertheless there must be a conviction, and a conditional discharge does not amount to a conviction capable of triggering the activation of a suspended sentence (see R v Moore [1995] 4 All ER 843), at any rate under the regime then in force. If that is correct for the regime now in force, it is said that the court should not have proceeded to determine whether to activate the suspended sentences until it had decided what the proper sentence for the subsequent offences should be, since if it was decided that the sentences for the subsequent offences should be a conditional discharge, there will not have been a conviction capable of triggering the activation of the suspended sentences. That point was not taken in the application to state a case, and so the Case Stated does not address it. But the flaw in the argument, in my opinion, in its application to the present case at any rate, is that, even on that approach, this is not a case in which a conditional discharge could conceivably have been an appropriate sentence for the offence of driving with excess alcohol, even when viewed in isolation. A fine would have been the appropriate sentence, and would unquestionably have been what would have been passed in this case if the appellant had not been in breach of a suspended sentence. After all, he was in work at the time of the sentence, and could no doubt have afforded to pay even a modest fine. In any event, he would inevitably have to have been disqualified from driving, and it has not been argued that that part of the sentence would not have resulted in the offence of driving with excess alcohol being treated as a conviction.
19. Finally, a compendious point is taken that the Crown Court appears not to have followed the requirements of paragraph 8 of Schedule 12 to the 2003 Act and the sentencing guidelines relating to the circumstances in which a suspended sentence should be activated. I have referred to the contents of the Case Stated at some length in order to show that I disagree with that submission. The Crown Court had those requirements very much in mind, and the sentence which it passed was not inconsistent with those requirements. This may well have been a tough sentence, but it is not one which can be impeached on the basis that the Crown Court failed to take into account relevant factors, or took into account irrelevant factors, or reached a decision which it was not reasonably open to reach.
20. I would therefore answer the first question posed for our opinion as "no", and since I take the view that the Crown Court did not depart from either the guidelines of the Sentencing Guidelines Council or the guidance of the Magistrates Association, as the latter guidance did not purport to apply to the sentence for an offence of driving with excess alcohol when that offence was committed during the operational period of a previously imposed suspended sentence, in my opinion it would not be appropriate for the court to answer the second question.
21. For these reasons, I would dismiss this appeal.
22. LORD JUSTICE RICHARDS: I agree. Thank you, Mr Pressler.