Bateman, R. v [2012] EWCA Crim 2158

Case No 201204568 A5, 201202737 A6[2012] EWCA Crim 2158Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 27 November 2012
IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE CROWN COURT AT TEESSIDE
His Honour Judge Peter Fox Q.C. (Recorder of Middlesbrough)
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And
IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE CROWN COURT AT LIVERPOOL
His Honour Judge Lewis
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Before
LORD JUSTICE MOORE-BICKMR JUSTICE COLLINSHIS HONOUR JUDGE COOKE(sitting as a judge of the Court of Appeal, Criminal Division)
Between
THE QUEENRespondentANDREW BATEMANAppellantTHE QUEENRespondentSTUART DOYLEAppellant
Mr. Duncan McReddie (instructed by the Registrar of Criminal Appeals) for BatemanMr. John Potter (instructed by Cobleys LLP) for DoyleMr. Robert Jansen (instructed by the Crown Prosecution Service) for respondentHearing Hearing date : 24 th October 2012
Judgment
[1]These two appeals have been heard together because they raise an important question concerning the powers of the Crown Court when dealing with an offender committed by the magistrates’ court under section 6 of the Powers of Criminal Courts (Sentencing) Act 2000 (“the Act”) to be dealt with in respect of an offence.[2]Section 6 of the Act as amended by the Criminal

Justice Act 2003 provides (so far as material for present purposes) as follows:

“6.— Committal for sentence in certain cases where offender committed in respect of another offence. (1) This section applies where a magistrates’ court (“the committing court”) commits a person in custody or on bail to the Crown Court under any enactment mentioned in subsection (4) below to be sentenced or otherwise dealt with in respect of an offence (“the relevant offence”). (2) Where this section applies and the relevant offence is an indictable offence, the committing court may also commit the offender, in custody or on bail as the case may require, to the Crown Court to be dealt with in respect of any other offence whatsoever in respect of which the committing court has power to deal with him (being an offence of which he has been convicted by that or any other court). . . . (4) The enactments referred to in subsection (1) above are— (a) . . .; (b) sections 3 to 4A above (committal for sentence for offences triable either way); (c) . . . (d) . . . (e) paragraph 11(2) of Schedule 12 to the Criminal Justice Act 2003 (committal to Crown Court where offender convicted during operational period of suspended sentence).”
[3]Section 7 as amended concerns the powers of the Crown Court on committal under section 6. It provides (so far as material) as follows:
“7.— Power of Crown Court on committal for sentence under section 6. (1) Where under section 6 above a magistrates’ court commits a person to be dealt with by the Crown Court in respect of an offence, the Crown Court may after inquiring into the circumstances of the case deal with him in any way in which the magistrates’ court could deal with him if it had just convicted him of the offence (2) Subsection (1) above does not apply where under section 6 above a magistrates’ court commits a person to be dealt with by the Crown Court in respect of a suspended sentence, but in such a case the powers under paragraphs 8 and 9 of Schedule 12 to the Criminal Justice Act 2003(power of court to deal with suspended sentence) shall be exercisable by the Crown Court.”
[4]Finally, it is necessary to mention paragraph 11(2) of Schedule 12 to the Criminal

Justice Act 2003 (“Schedule 12”) which provides as follows:

“Where an offender is convicted by a magistrates’ court of any offence and the court is satisfied that the offence was committed during the operational period of a suspended sentence passed by the Crown Court— (a) the court may, if it thinks fit, commit him in custody or on bail to the Crown Court, and (b) if it does not, must give written notice of the conviction to the appropriate officer of the Crown Court.”
[5]The question raised by these appeals is whether, on the committal of an offender to the Crown Court to be dealt with in respect of the commission of an offence during the operational period of a suspended sentence imposed by that court (which for convenience we shall refer to as a breach of the suspended sentence), the Crown Court’s powers of sentence in relation to other offences in respect of which the offender is committed under section 6(2) of the Act are limited to those of the magistrates’ court. R v Bateman[6]Andrew Bateman applies for leave to appeal against a sentence of 32 months’ imprisonment imposed by the Recorder of Middlesbrough on 9th July 2012 in the Crown Court at Teesside. His application has been referred to the court by the Registrar and we grant him leave to appeal.[7]On 16th April 2012 in the Crown Court at Teesside the appellant had pleaded guilty to two counts of affray and on 4th May 2012 he had been sentenced to 12 months’ detention suspended for 24 months.[8]On 11th June 2012 in the Teesside magistrates’ court he had pleaded guilty to four offences of assault by beating contrary to section 39 of the Criminal Justice Act 1988. Those were all summary offences, but three of them were committed during the operational period of the suspended sentence imposed by the Crown Court on 4th May and the magistrates therefore committed the appellant to the Crown Court under paragraph 11(2) of Schedule 12. At the same time they also committed him to the Crown Court under section 6(2) of the Act to be dealt with in respect of the four offences of assault, thereby enabling the Crown Court to deal with all outstanding matters.[9]The assaults were all committed against the appellant’s partner and were of some severity. Indeed, the appellant was fortunate not to have been facing more serious charges. The Recorder took the view that he was a violent young man who had behaved atrociously and that his conduct merited a substantial custodial sentence, views with which we would not disagree. He activated the suspended sentence in full and imposed consecutive sentences of 5 months’ detention in respect of each assault, making 32 months’ detention in all. He also made a restraining order preventing the appellant from approaching or communicating with his former partner.[10]The matter came back before the Recorder on 24th July 2012 on an application for reconsideration of the sentence. Counsel for the appellant submitted that the court’s powers of sentence were limited by section 7(1) of the Act to those available to the magistrates, namely, a sentence of no more than 6 months’ detention in all. The Recorder disagreed. He noted that section 7(2) provides that “Subsection (1) above does not apply where under section 6 above a magistrates’ court commits a person to be dealt with by the Crown Court in respect of a suspended sentence. . . ” and held that the court’s powers of sentence are not constrained by section 7(1) in a case where the magistrates have committed a person to be dealt with in respect of a suspended sentence previously imposed by the Crown Court. He therefore declined to alter the sentence. R v Doyle[11]Stuart Doyle applies for leave to appeal against a sentence of 2 years’ imprisonment imposed by His Honour Judge Lewis on 30th March 2012 in the Crown Court at Liverpool. His application has been referred to the court by the Registrar and we grant him leave to appeal.[12]On 10th December 2010 the appellant had been sentenced for offences of burglary and perverting the course of justice to 12 months’ imprisonment suspended for 12 months with conditions that he submit to probation supervision for 12 months and perform 150 hours unpaid work.[13]On 2nd March 2012 at the Liverpool and Knowsley magistrates’ court he had pleaded guilty to producing cannabis and abstracting electricity. Both offences were committed during the operational period of the suspended sentence imposed on 10th December 2010 and accordingly the magistrates committed him to the Crown Court under paragraph 11(2) of Schedule 12. At the same time they also committed him to the Crown Court under section 6(2) of the Act to be sentenced in respect of the offences of producing cannabis and abstracting electricity.[14]On 30th March 2012 in the Crown Court at Liverpool the appellant was sentenced by His Honour Judge Lewis to a total of 2 years’ imprisonment. That resulted from the activation in full of the custodial element of the suspended sentence and the imposition of a sentence of 12 month’s imprisonment consecutive in respect of the production of cannabis. A sentence of 3 months’ imprisonment concurrent imposed in respect of the abstraction of electricity did not add to the total period to be spent in custody. The offence of producing cannabis is triable either way, but if the matter is tried summarily the magistrates’ powers of sentence are limited to 6 months’ imprisonment. If they consider that the offence is so serious that greater punishment should be inflicted than they have power to impose, they can commit the offender to the Crown Court for sentence under section 3 of the Act. In the present case the magistrates chose not to take that course, but when the matter came before the Crown Court no one appears to have considered whether in the light of section 7(1) of the Act it was open to the court to pass a sentence of 12 months’ imprisonment for that offence. The interpretation of section 7[15]Surprising as it may seem, there appears to no decided case in which the language of section 7(2) has been subjected to detailed analysis, although it has been accepted in a number of decided cases that the Crown Court’s powers of sentence in relation to any offence in respect of which a person has been committed under section 6 of the Act are limited by section 7(1). It has also been accepted that the limitation applies even in cases where the primary purpose of the committal is to enable the Crown Court to deal with the breach of a suspended sentence. In one case, however, doubt has been cast on that proposition and, as the decision in Bateman demonstrates, some judges have reached a different conclusion. We shall consider the decided cases at a later stage, but we think it may be helpful to begin by considering the language of the statutory provisions and the legislative purpose of sections 3 to 7 of the Act.[16]Sections 3 to 4A of the Act give the magistrates’ court power under a variety of circumstances to commit an offender to the Crown Court for sentence and in such cases sections 5 and 5A give the Crown Court power, subject to certain exceptions, to deal with the offender in any way in which it could deal with him if he had just been convicted of the offence on indictment. As we have already noted, paragraph 11(2)(a) of Schedule 12 gives the magistrates’ court power to commit a person to the Crown Court to be dealt with in respect of the breach of a suspended sentence.[17]If a person is to be committed to the Crown Court for sentence or to be dealt with in respect of a breach of a suspended sentence, it is clearly desirable that all outstanding matters should be dealt with by the court on the same occasion. Section 6 therefore gives the magistrates’ court power to commit the offender in respect of other offences when exercising its primary power of committal. Such offences may be described as “associated offences”. The primary powers of committal for these purposes are those identified in section 6(4). Where the offence in respect of which the magistrates are exercising their primary power of committal (described in section 6(1) as the “relevant offence”) is an indictable offence (a term which includes offences triable either way) the power to commit associated offences is unrestricted: see section 6(2). If the relevant offence is a summary offence, the power is more limited: see section 6(3).[18]Section 7 deals with the sentencing power of the Crown Court in relation to offences in respect of which a person has been committed under section 6, i.e. associated offences. By definition, therefore, it has no application to offences in respect of which a person has been committed under sections 3 to 4A. Nor does it have any application in the case where a person is committed to the Crown Court to be dealt with for an offence in respect of which a suspended sentence had previously been imposed by that court. The magistrates’ power to commit a person to the Crown Court to enable it to consider the activation of a suspended sentence arises under paragraph 11 of Schedule 12, not under section 6(1) of the Act, which simply describes the circumstances in which the powers of committal under subsections (2) and (3) arise. In such cases the “relevant offence” to which section 6(1) refers is the offence in respect of which the suspended sentence was imposed.[19]Section 7(1) limits the power of the Crown Court in cases where a person is committed under section 6 to dealing with him “in any way in which the magistrates’ court could deal with him if it had just convicted him of the offence.” Those words not only limit the scope of the Crown Court’s powers; they also provide part of the key to the interpretation of section 7(2), to which we shall come in a moment. Their importance for present purposes, however, is that they give effect to what can be seen as an important aspect of the legislative scheme of sections 3 to 7, namely, that an offender committed to the Crown Court in respect of one or more associated offences simply for reasons of good sentencing practice should not for that reason be exposed to a greater penalty than could have been imposed on him by the magistrates’ court unless the magistrates themselves have reached the conclusion that their powers of sentence are insufficient. In those circumstances it would be surprising if Parliament had intended to give the Crown Court unlimited sentencing powers (and thereby to expose the offender to a greater penalty than could have been imposed on him by the magistrates’ court) only in cases where he was committed for breach of a suspended sentence.[20]When considering the proper interpretation of section 7(2) two things must be borne in mind. The first is that both subsection (1) and subsection (2) are concerned with committals under section 6, that is, with the committal of a person to the Crown Court to be dealt with in respect of an associated offence. The second is that subsection (2) must be read in the context of subsection (1), to which it provides an exception. Committal of a person to the Crown Court to be dealt with for a breach of a suspended sentence imposed by that court involves the exercise of the magistrates’ powers under paragraph 11(2)(a) of Schedule 12, not of their powers under section 6 of the Act. It follows, therefore, that when subsection (2) speaks of the committal of a person under section 6 to be dealt with by the Crown Court in respect of a suspended sentence it must be referring to a suspended sentence previously imposed by the magistrates’ court. That is reinforced by the words that follow, which enable the Crown Court to exercise the powers under paragraphs 8 and 9 of Schedule 12 which could otherwise have been exercised by the magistrates themselves. In those circumstances the opening words of subsection (2) disapply the provisions of section 7(1) which would otherwise enable the Crown Court to deal with the offender in any way in which the magistrates’ court could deal with him if it had just convicted him of the offence. The two parts of section 7(2) therefore complement each other and implement the overall legislative purpose of sections 6 and 7 by ensuring that on committal to the Crown Court under section 6 a person is not exposed to a more severe penalty than could have been imposed on him by the magistrates.[21]Although there are many cases in which the court has referred to the important distinction for the purposes of the Crown Court’s sentencing powers between committal under section 3 of the Act and committal under section 6 (see, for example, R v Qayum [2010] EWCA Crim 2237, R v Ayhan [2011] EWCA Crim 3184, R v Mitchell [2011] EWCA Crim 2030 and R v Murphy [2012] EWCA Crim 469, we are aware of only two cases in which the offender had been committed to the Crown Court for breach of a suspended sentence. In R v Mitchell [2011] EWCA Crim 2030 the appellant had been sentenced by the Crown Court in December 2010 to 7 months’ imprisonment suspended for 18 months for an offence of assault occasioning actual bodily harm. During the operational period of that sentence he committed two further offences, one of racially aggravated use of threatening, abusive or insulting words or behaviour (an offence triable either way) and one of contravening section 5 of the Public Order Act 1936, an offence triable summarily only. He was therefore committed to the Crown Court under paragraph 11 of Schedule 12 to be dealt with in respect of the suspended sentence. At the same time he was committed under section 6 of the Act to be sentenced in respect of the two later offences.[22]The Crown Court judge activated the suspended sentence in full and imposed a consecutive sentence of 12 months’ imprisonment in respect of the racially aggravated abuse and no separate penalty in respect of the public order offence making a total sentence of 19 months’ imprisonment. On appeal this court held that the sentence imposed in respect of the racially aggravated abuse was unlawful because the Crown Court’s powers of sentence were limited to those of the magistrates’ court. Bean J., giving the judgment of the court, said:
“12. The exception provided by subsection (2) to the general rule under subsection (1) confining the Crown Court to the powers of the Magistrates' Court is not applicable in this case. That is because the committal in respect of the suspended sentence imposed on 21st December 2010 was not a committal under section 6 of the 2000 Act, rather it was a committal under paragraph 11 of Schedule 12 to the Criminal Justice Act 2003. It follows that Judge Cutler's powers were limited to six months' imprisonment in respect of the New Year's Eve incident.”
[23]In R v Murphy the Crown Court had sentenced the appellant on 9th October 2009 to 40 weeks’ imprisonment suspended for two years for an offence of attempting to supply a Class C drug. On 12th September 2011 he pleaded guilty before the magistrates to possession of an offensive weapon and failure to surrender and was committed to the Crown Court to be dealt with in respect of the suspended sentence. At the same time the magistrates committed him to be sentenced for the fresh offences. The Crown Court sentenced him to three years’ imprisonment for possession of the offensive weapon and imposed no additional penalty for failing to surrender. It did not activate the suspended sentence. The decision is of interest primarily because a dispute arose about which of its powers of committal the magistrates’ court had exercised in relation to the offence of possessing an offensive weapon. This court appears to have regarded it as axiomatic that if the magistrates had exercised their powers under section 6(2) of the Act, the Crown Court’s powers were limited to imposing a sentence of six months’ imprisonment. Thus, Rafferty L.J. said “30. If the Appellant had been committed under the provisions of section 6, then the provisions of section 7(1) of the same Act would restrict the powers of sentence of the Crown Court to those of the Magistrates’ Court and as a consequence the maximum sentence for possession of the meat cleaver would have been six months' imprisonment, and a loss of liberty of three years would appear to have been unlawful. Given that the failure to surrender offence might appear on a first reading of the papers similarly to have been committed, the maximum available aggregate sentence for the two was six months, as a consequence of section 7(1) read with section 133 of the Magistrates' Court Act 1980.” After considering the evidence, however, the court found that the appellant had in fact been committed under section 3 of the Act with the result that the sentence was lawful.[24]The only support for the contrary view of which we are aware is to be found in R v Morgan [2012] EWCA Crim 1939. In that case the appellant had been sentenced by the Crown Court in February 2012 to 6 months’ imprisonment suspended for 2 years for burglary and possession of a Class A drug. A number of conditions were attached to the order to which it is unnecessary to refer. In April 2012 he pleaded guilty before the magistrates to an offence of theft committed during the operational period of that suspended sentence. The magistrates committed him to the Crown Court to be dealt with for the breach of the suspended sentence.[25]The judge imposed a sentence of 9 months’ imprisonment for the theft and activated the suspended sentence in full consecutively, making 15 months’ imprisonment in all. The Registrar referred an application for leave to appeal against conviction to the Full Court because he was concerned about the lawfulness of the sentence. Having considered the language of sections 6 and 7 of the Act, the court appears to have considered that the expression “suspended sentence” in section 7(2) was intended to refer to a suspended sentence imposed by the Crown Court, but for the reasons we have given that cannot, with respect, be the case.[26]The court then tentatively raised the possibility that, whenever a person is committed to the Crown Court for breach of a suspended sentence, the effect of section 7(2) might be to give that court untrammelled powers of sentence in respect of all matters committed to it, including any offences constituting the breach of that suspended sentence. However, it regarded that as a doubtful proposition which would require careful consideration before any final decision was reached. The proposition which the court had in mind appears to have been that which found favour with the judge in Bateman’s case, but in our view it is one which must be rejected for the reasons we have given.

(a) Bateman

[27]The magistrates’ powers of sentence in relation to the four offences of assault were limited by section 133 of the Magistrates’ Courts Act 1980 to imposing a total sentence of six months’ imprisonment and it follows from what we have said that the sentencing powers of the Crown Court were limited in the same way. The sentence of 20 months’ imprisonment passed in respect of them was therefore unlawful and must be quashed. We substitute in each case a sentence of 5 months’ imprisonment, those sentences to run concurrently. We do not propose to interfere with the order activating the suspended sentence. As a result the total sentence becomes one of 17 months’ imprisonment and to that extent the appeal is allowed.

(b) Doyle

[28]Since the magistrates chose not to exercise their power under section 3 of the Act to commit the appellant for sentence in respect of the offence of producing cannabis but to commit him instead under section 6, the Crown Court’s powers of sentence were limited to 6 months’ imprisonment. The sentence of 12 months’ imprisonment imposed by the judge was therefore unlawful and must be quashed. We substitute a sentence of 4 months’ imprisonment in respect of that offence, giving full credit for his early plea.[29]By the time the appellant appeared before the Crown Court to be dealt with in respect of the suspended sentence he had completed the whole of the unpaid work which he had been ordered to perform. In those circumstances Mr. Potter submitted on his behalf that, when considering whether to activate the custodial element of the sentence, the judge ought to have given the appellant credit for the unpaid work he had already carried out. In support of that submission he relied on the judgment of this court in R v Zeca [2009] EWCA Crim 133, [2009] 2 Cr. App. R. (S) 65.[30]In our view there is force in that submission. We think that the appellant should be given credit for having completed the unpaid work which he was ordered to perform as part of his sentence. We therefore quash the sentence of 12 months’ imprisonment and substitute a sentence of 6 months’ imprisonment, making a period of 10 months’ imprisonment in all. To that extent the appeal is allowed.[31]We would just add this. Since, as these appeals and the earlier authorities make clear, it makes a considerable difference to the Crown Court’s sentencing powers whether an offender is committed under section 3 or section 6 of the Act, magistrates committing a person to the Crown Court to be dealt with in respect of a suspended sentence previously imposed by that court should consider carefully which of their statutory powers they should exercise. They should also ensure that their decision is clearly expressed at the time of making the order and correctly recorded.