Oxley, R v [2003] EWCA Crim 3739

Case No 03/372/B2[2003] EWCA Crim 3739
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Venue Royal Courts of JusticeDate Thursday, 27 November 2003
Strand
London, WC2
B E F O R E:
LORD JUSTICE TUCKEY
MR JUSTICE ELIAS
MR JUSTICE COOKE
Between
R E G I N ACrown-v-
Between
WAYNE MICHAEL OXLEY
Computer Aided Transcript of the Stenograph Notes ofSmith Bernal Wordwave Limited190 Fleet Street London EC4A 2AGTel No: 020 7404 1400 Fax No: 020 7831 8838(Official Shorthand Writers to the Court)
MR RICHARD TAYLOR (a solicitor advocate) appeared for APPELLANT
J U D G M E N T
[1]MR JUSTICE COOKE: On 9th May 2003 the appellant pleaded guilty before the magistrates to two charges of burglary and was then committed to the Crown Court for sentence under section 3 of the Powers of Criminal Courts (Sentencing) Act 2000. He also pleaded guilty to one charge of theft and to failing to surrender to his bail, and was committed to the Crown Court for sentence under a different section, section 6 of the Powers of Criminal Courts (Sentencing) Act. He was sentenced in the Crown Court on 6th June in the following way: first, on the two charges of burglary, to 42 months' imprisonment concurrent on each count; then in relation to the theft, he received a sentence of three months' imprisonment consecutive to the burglary sentences; and on the charge of failing to surrender to custody at the appointed time, a further three months' imprisonment, which was consecutive also. The total sentence was thus one of four years. Eight further offences were taken into consideration, including four other burglaries of dwelling-houses. Three of the offences of burglary were committed whilst on bail for the theft and in breach of a conditional discharge order and while subject to two criminal rehabilitation orders.[2]The appellant appeals against the sentence on the Bail Act offence in particular, but also in respect of the totality of the four year sentence. The single judge considered that leave was not required for the appeal against the Bail Act offence by reason of section 13 of the Administration of Justice Act 1960, which gives an appeal as of right for any sentence for contempt. He refused leave in respect of the sentences for the other offences.[3]For reasons which appear hereafter, it is more than doubtful whether this was a sentence in respect of contempt. In such circumstances leave would then have been required. We give leave, if it is necessary to do so, and deal with the substantive issues that have been raised.[4]The underlying facts can be recited shortly. On 15th March 2003 the appellant stole some books, worth £55 approximately, from a general store in Burnley. He was arrested the same day. He cooperated with the police and the books were recovered. He was then bailed to appear at the magistrates' court on 16th April, but failed to attend and a warrant was then issued.[5]The appellant had meanwhile committed two burglaries in the Burnley area whilst on bail on 3rd and 15th April. The details of those do not matter for present purposes. He was arrested on 30th April and pleaded guilty to the Bail Act offence and said that he had mixed the dates up. The court sought pre sentence reports and the case was adjourned until 28th May. On 1st May however he was arrested in respect of the two burglaries.[6]The appellant had a bad record of past convictions, including 21 prior burglaries or thefts from dwelling-houses or attempts thereat. During the very first of such burglaries a man had died, and the appellant had a manslaughter conviction also as a result.[7]As already mentioned, there is no appeal as such against the sentences for the burglaries or the theft, nor could there be in the light of the appellant's past record and the additional matters which fell to be taken into consideration. The sole ground of appeal is that the three month sentence for the Bail Act offence was manifestly excessive and the totality of four years was therefore also excessive.[8]Whilst it is conceded for the appellant that a consecutive sentence might be appropriate, it is contended that the maximum possible sentence here was three months and that, with a plea on the Bail Act offence, there should have been some discount. The effect, of course, of any reduction would be to bring the sentence below four years and thus render the appellant a short-term as opposed to a long-term prisoner.[9]The appellant was committed for sentence by the magistrates' court to the Crown Court for the Bail Act offence and the theft under section 6 of the Powers of Criminal Courts (Sentencing) Act 2000 in conjunction with the committal of the appellant to the Crown Court for sentencing on the more serious burglary offences under section 3 of that Act. The reason for the latter committal in respect of the burglary offences was because the magistrates considered their powers insufficient for an appropriate sentence. They did not, however, commit the appellant under that section in respect of the bail offence. Equally there was no committal under section 6(6) of the Bail Act on the grounds of inadequacy of the power of the magistrates' court to deal with the Bail Act offence. The effect of this is that, under section 7 of the Powers of Criminal Courts (Sentencing) Act, the Crown Court's powers of sentence were limited to those of the magistrates' court for the Bail Act offence, subject to the question of the construction of section 6(7) of the Bail Act, to which we will refer in a moment.[10]Section 6(5) of the Bail Act provides that an offence under subsection (1) or (2) is punishable either on summary conviction or as if it were a criminal contempt of court. Section 6(7) of the Bail Act provides that the maximum sentence for the section 1 Bail Act offence is three months on summary conviction or twelve months if treated as a contempt of court or if committed for sentencing to the Crown Court in the manner that the subsection envisages. The wording of the section is as follows:
"A person who is convicted summarily of an offence under subsection (1) or (2) ... and is not committed to the Crown Court for sentence shall be liable to imprisonment for a term not exceeding 3 months or to a fine not exceeding level 5 on the standard scale or to both and a person who is so committed for sentence or is dealt with as for such a contempt shall be liable to imprisonment for a term not exceeding 12 months or to a fine or both."
In the magistrates' court, which is an inferior court of record, the jurisdiction in dealing with contempt is limited to contempt in the face of the court, and, subject to the provisions of section 6(7) of the Bail Act however, the maximum sentence would be one month by virtue of section 14 of the Contempt of Court Act 1981. Because there is express provision in section 6(7) of the Bail Act, the maximum sentence set out in that subsection is that to which we are to have regard.[11]The effect is that, subject to the meaning of "committed" in that subsection, the maximum sentence available here so far as the magistrates were concerned was a three month sentence when dealing with the offence as a Bail Act offence and not as contempt.[12]What happened here was that the appellant pleaded guilty to an offence under section 6(1) of the Bail Act. Committal for sentence followed later, with the committals for sentence on the burglary and theft, but, as we have mentioned, on the basis of section 6 of the Powers of Criminal Courts (Sentencing) Act, not section 3. No question of dealing with this as a contempt arose. It was dealt with summarily as a Bail Act Offence in accordance with the practice set out in Schiavo v Anderton [1987] QB 20, as conveniently set out in Archbold at paragraph 3-27. In consequence, leave to appeal against such sentence was needed and the maximum available sentence was three months, unless section 6(7) of the Bail Act increases that limit to twelve months. It seems to us, however, that the reference to "committed" and the increased level referred to in section 6(7) applies only to committals to the Crown Court where the magistrates' court considers its sentencing powers inadequate for the bail offence. It is therefore on the basis of a three month maximum sentence that the appellant contends that the sentence imposed was manifestly excessive in the light of the plea and the nature of the offence.[13]The explanation offered for the failure to surrender to bail was not wholly implausible and there was a theoretical possibility of a defence, we suppose, on the basis that there was some reasonable cause for the failure to attend.[14]We have been referred to decisions of this court in relation to the appropriate manner of sentencing for Bail Act offences, and in particular we have regard to the decision in R v White and McKinnon [2002] EWCA Crim 2952. A consecutive sentence may be passed and it is a matter for the individual trial judge at the end of the day as to whether or not a significant sentence is to be imposed, even where a sentence on other offences is to be measured in terms of years.[15]There were here two prior Bail Act offences in the appellant's list of past convictions, for which he had received sentences respectively of seven days and four months' custody, concurrent in each case with the sentence for the substantive offence for which he was on bail. There is nonetheless force in the argument that the maximum available sentence of three months should not have been imposed in the present case.[16]However, looking at the totality of this appellant's offending behaviour and the different sentences imposed by the Recorder, it is plain that he took the view that the appellant should receive a sentence of four years and thus become a long-term prisoner. In that, having recited the appellant's past record as well as the offences in question, we consider that he was right and that a reduction in the sentence for the Bail Act offence should not bring him into the category of a short-term prisoner.[17]Under section 11(3) of the Criminal Appeal Act 1968 it would be open to this court, having considered the circumstances of the other offences and the principle of totality in relation to the overall criminality of the appellant's behaviour, to quash the three month sentence for the bail offence and replace it with a lesser sentence, but to increase the sentences on the other substantive matters in order to adjust the different sentences to arrive at a total of four years. We do not consider that to be necessary, having regard to the total criminality and the total sentence imposed. Therefore we do not make any alteration in the sentences. For those reasons, the sentence remains at four years in all, the Bail Act offence sentence remains as it is and this appeal is dismissed.