Josh Campbell v R [2026] EWCA Crim 51

[2026] EWCA Crim 51Case No 202503579 A4
IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE CROWN COURT AT SNARESBROOK
His Honour Judge Pounder
Venue 01KD1230724 Royal Courts of Justice, Strand, London, WC2A 2LLDate 06/02/2026
Before
THE VICE-PRESIDENT OF THE COURT OF APPEAL CRIMINAL DIVISIONLORD JUSTICE EDISLADY JUSTICE MAYHER HONOUR JUDGE LLOYD-CLARKE, RECORDER OF CARDIFFSitting as a judge of the Court of Appeal Criminal Division
Between
JOSH CAMPBELLAppellantTHE KINGRespondent
Andrew Price (assigned by the Registrar) for AppellantLouise Oakley (instructed by the Crown Prosecution Service) for RespondentHearing Hearing dates : 15 January 2026
Approved JudgmentThis judgment was handed down remotely at 10.30am on 6 February 2026 by circulation to the parties or their representatives by e-mail and by release to the National Archives..............................

The Vice-President:

[1]This is an appeal against sentence by leave of the single judge. On 15 January 2026 we heard argument and announced that it would be dismissed and that we would give our reasons in writing at a later date. This we now do.[2]The appellant was convicted after a trial of three counts of Religiously Aggravated Damage to Property, contrary to section 30(1) of the Crime and Disorder Act 1998. He was sentenced to three concurrent terms of 32 months’ imprisonment. He was sentenced alongside two other men, Harvey Wells and James Desbois, whose circumstances and roles were somewhat different and who received different sentences of imprisonment. Other orders were made on which nothing now turns.

The facts

[3]On 25th July 2024, graffiti was spray painted on concrete surfaces outside three separate educational facilities, which were used as places of worship in the Romford area. This was the damage complained of in the three counts. It had been caused around midnight. Police received a call from Rainham Village Primary School at approximately 0830 stating that a pig’s head had been placed outside the entrance to the school along with graffiti saying 'No Mosque Here'. Officers on duty had called in at 0300hrs stating that there was a pig’s head and graffiti saying 'No Mosques' outside Harris Academy School. A further report came in from a local community officer at 1227 stating again that a pig’s head and graffiti stating 'No Muslims Here' was found outside the rear entrance of Royals Community Centre. The premises were not permanently used by Muslims for religious purposes, but each of them had been used as such recently. Harvey Wells had recruited the appellant at some point before 19th July 2024. The appellant and Wells knew each other because they were both involved in the supply of drugs. Wells arranged to pick up the raw pigs’ heads from an address in South Ockendon. He provided the appellant with the addresses of the premises they were to attack. Having been told of the plan, the appellant conducted an internet search for spray paint. This occurred at 6:11am on 19 July 2024. The appellant recruited the co-defendant James Desbois on the morning of 25th July 2024 to drive him and Wells to and from each of the three locations. Desbois was a drug addict and the appellant offered to pay Desbois for his services with drugs. Wells was picked up by the appellant and Desbois shortly after 11:00pm on 25th July 2024. The appellant assisted Desbois in putting the addresses in a mobile telephone to provide directions to Desbois. Wells got out of James Desbois’ Ford Focus at Rainham Village Children’s Centre, the Royal Youth Community Centre and Harris Academy, spray painted the words “no mosques” and placed the pigs’ heads on the ground. The appellant was present at all three locations when the damage was caused.[4]The appellant was arrested. At his address a North Face Jacket was seized from this address, inside a bin. Extensive CCTV which had been recovered showing the offenders suggested that this jacket had been worn during the offences. Additionally, a Nike hoodie was found at this address with a red stain on it, which was linked to the spray paint used for the offence.[5]In interview, the appellant stated that he did not remember what he had been doing on the day of the offence as he is usually intoxicated and therefore forgets. He stated he had never been in Rainham and did not recognise any of the locations attended. When asked about his mobile phone, he stated that he often loses it. He stated the clothing items seized were 'planted' by police.

The impact of the offending

[6]On 29 July 2024, a stabbing attack took place at a Taylor Swift-themed dance and yoga event for children in Southport, Merseyside, United Kingdom, resulting in the deaths of three young girls and injuries to several others. This was followed by a very severe outbreak of public disorder much of which was targeted at Muslims because of the false belief that the murderer had been a Muslim. This was after the offences in the present case, but before the appellant was arrested and interviewed.[7]The Area Commander prepared a witness statement which explained the impact on the community of the three offences. He said:- “The impact these crimes have caused on policing cannot be underestimated. This incident alone had caused such community tension at a time of national concern due to significant crimes that have occurred. Hundreds of police hours have been spent not only on the investigation that saw a dedicated team deploy to CCTV and digital investigation but also to reassurance patrols at local mosques and community buildings such as those targeted.”[8]The events of national significance there referred to could not, of course, have been anticipated at the time of the offending here.[9]There was other evidence of the severe impact of the offences on individuals and groups in the form of impact statements. This was material of importance in determining sentence.

Other materials before the judge

[10]The judge had a number of references which spoke well of the appellant, and a Pre-Sentence Report (PSR). The appellant is now 35 years old and had appeared before the criminal courts twice before. These were both related to drugs and on the second occasion, on 23 February 2021, he had received a suspended prison sentence for offences including being concerned in the supply of a class A controlled drug, namely cocaine. The PSR noted the impact of the offences:- “These offences appear to have been pre planned. The sites were not Mosques so research must have been carried out to know they were sites where prayers or classes were taking place. The timing of the offences was Thursday night/Friday morning so the graffiti and pigs’ heads would have been discovered by those attending for early prayers Friday morning. It is hard to think of something that would be more offensive than a pigs’ head being left.”[11]The PSR referred to a psychologist’s report which identified some mental health problems with which the appellant had had to deal, and noted also his misuse of controlled drugs and, to a lesser extent, alcohol. He had employment and family responsibilities. The PSR suggested that if the court did not impose an immediate custodial sentence, a suspended sentence order could be made subject to requirements. The judge’s approach[12]In clear and measured sentencing remarks the judge directed himself to the guideline for criminal damage where the value of the damage is more than £5,000. This also deals with the aggravated offence, contrary to section 30 of the 1998 Act. The judge placed the offence in category A1 for culpability and harm because of the high degree of planning and premeditation and because the offences caused serious distress and a serious consequential social impact, as they had been designed to do. This involved a starting point of 18 months and a range of 6 months to 4 years for criminal damage, contrary to section 1 of the Criminal Damage Act 1971. The judge balanced the aggravating and mitigating factors and remained at a sentence of 18 months at that stage, having regard to the low value of the damage. He then had to consider the impact of the religiously aggravated nature of the offences. The guideline says this about the aggravated form of the offence in cases, such as the present, where the level of racial and religious aggravation is high:- High level of racial or religious aggravation Sentence uplift Racial or religious aggravation was the predominant motivation for the offence. Offender was a member of, or was associated with, a group promoting hostility based on race or religion. Aggravated nature of the offence caused severe distress to the victim or the victim’s family (over and above the distress already considered at step one). Aggravated nature of the offence caused serious fear and distress throughout local community or more widely. Increase the length of custodial sentence if already considered for the basic offence or consider a custodial sentence, if not already considered for the basic offence.[13]The guideline does not say how great any increase in the length of a custodial sentence should be. The judge decided to increase his sentence to 39 months, before reducing it by 3 months to reflect the lack of a relevant previous conviction and by a further 4 months to reflect his somewhat subordinate role to that of Wells. That produced the sentence of 32 months.

The judge also said this:

[14]- “My attention has been drawn to R. v Rezazadeh [2020] EWCA Crim 607. There are obviously quite a lot of differences between that case and this case. It could be said that this case is more serious because it was a deliberate targeting of these locations, whereas in some respects one can see what happened in Mr Rezazadeh’s case, it was a dispute about various aspects of his faith and that caused him to act in the way that he did, rather than deliberately going out to, as I said, commit a hate crime as against society in general, or part of society in general.”

Rezazadeh [2020] EWCA Crim 607

[15]Rezazadeh was sentenced to 45 months custody following guilty pleas at PTPH to five offences of racially aggravated damage to property. In the early hours of 21 March 2019, he attacked five separate mosques in the Birmingham area. He was equipped with a sledgehammer and a golf club and smashed windows and doors at each of the mosques. He was wearing dark clothing and a dark hat and had set out to disguise himself. On 22 March 2019, he handed himself in at a police station and admitted responsibility. He later denied responsibility following a deterioration in his mental health. The sentencing judge concluded that his offending fell within category 1A and that the starting point was 18 months custody with a category range of six months – four years imprisonment. He held that, but for the racial aggravation, the appropriate sentence was two years’ custody before discount for the pleas of guilty. Having considered the sentencing guidance for racially and religiously aggravated criminal damage he enhanced the sentence to 5 years imprisonment. The judge concluded that appellant’s offending involved a high level of racial or religious aggravation given this was his sole motivation in this case. The Judge also took into account that the aggravated nature of the offence had caused serious fear and distress throughout the local Muslim community and more widely. The Court of Appeal did not fault the Judge’s approach. The sentence of 45 months custody was upheld.

The procedural history

[16]For reasons which will become apparent when we turn to the guidelines, it is important to set out the way in which the counts on the indictment came to be before the Crown Court.[17]On 2 August 2024 the appellant appeared before the justices charged with one offence namely:- “Offence : Racially / religiously aggravated criminal damage Offence Date: 24 Jul 2024 On 26/07/2024 at Rainham in the Borough of Havering, without lawful excuse, damaged Pavement outside of the venue to a value unknown belonging to London borough of Havering, intending to destroy or damage such property or being reckless as to whether such property would be destroyed or damaged and the offence was religiously aggravated within the terms of section 28 of the Crime and Disorder Act 1998.”

Offence Date: 24 Jul 2024

[18]He was remanded in custody and next appeared on 9 August when the court declined jurisdiction and directed trial by jury. The reference to section 28 of the 1998 Act is an error. That is the section which defines when an offence is racially or religiously aggravated. The relevant offence is created by section 30 of the Crime and Disorder Act 1998, is triable either way and carries a maximum sentence of 14 years imprisonment. This section provides:- 30. — Racially or religiously aggravated criminal damage.(1) A person is guilty of an offence under this section if he commits an offence under section 1(1) of the Criminal Damage Act 1971 (destroying or damaging property belonging to another) which is racially or religiously aggravated for the purposes of this section.(2) A person guilty of an offence under this section shall be liable— (a) on summary conviction, to imprisonment for a term not exceeding six months or to a fine not exceeding the statutory maximum, or to both; (b) on conviction on indictment, to imprisonment for a term not exceeding fourteen years or to a fine, or to both.(3) For the purposes of this section, section 28(1)(a) above shall have effect as if the person to whom the property belongs or is treated as belonging for the purposes of that Act were the victim of the offence.[19]The case was Sent for trial under Section 51(1) & (2)(b) of the Crime and Disorder Act 1998. The appellant was granted bail, subject to conditions. The charge was the same and did not specify a value of the damage alleged. The charge was intended to cover all three incidents of spray painting. The justices did not consider whether the value of the damage was less £5,000 and did not proceed as if the offences were triable only summarily. This is the procedure mandated by section 22 of the Magistrates’ Courts Act 1980 where an offence under section 1 of the Criminal Damage Act appears to have caused damage valued at less than £5,000.[20]When the indictment was drawn up at the Crown Court, each of the three incidents was represented in its own count, correctly citing section 30(1) of the 1998 Act as the offence creating provision.[21]The evidence showed that the total cost of making good the damage at all three sites was less than £5,000.

The grounds of appeal and the response

[22]The Grounds have been argued with clarity and force by Mr Price. They are phrased in this way:- i) The Judge should have had regard to the lower Guideline for criminal damage with a value not exceeding £5,000. The Judge erred in applying the higher Guideline and therefore took too great a starting point from which to sentence. ii) Applying the higher Guideline marked the religiously aggravated nature of the offence, and any further uplift is double counting. The Judge should have arrived at an appropriate sentence on the criminal damage sentencing guidelines before aggravating it to mark the religiously aggravated element.[23]In a Respondent’s Notice and in oral submissions, Miss Oakley submitted that the judge was right to use the higher guideline and said:- “i. The Judge did not err in applying the ‘exceeding £5000 guideline’. He was required to do so and properly had regard to the ‘not exceeding £5000 guideline’. ii. Having properly considered Josh Campbell’s culpability and the harm caused by his offending, the Judge identified a correct starting point of 18 months custody and a category range of 6 months – 4 years custody. iii. Having identified the correct starting point the Judge considered additional features of culpability and/or harm to reach a sentence within the category range. The Judge did not make any further upward adjustment to the starting point to ensure that he did not ‘double count’ any of these features. In particular, he did not increase the starting point to reflect the fact there were three separate offences. iv. Having determined the correct sentence for the criminal damage, the Judge was then required to consider the level of religious aggravation involved and apply an appropriate uplift. The Judge was entitled to conclude that the religious aggravation was the predominant motivation for the offending. 70. If the Prosecution led the Judge into error in his approach to the Sentencing Guidelines and their applicability it is nevertheless submitted that the total overall sentence of 32 months custody is not manifestly excessive given the constellation of aggravating factors. The value of the damage should not be the determining factor. The motivation for the offending and the harm caused are the key features of the offending in this case.”

Which guideline?

[24]We have identified the way in which the judge treated the guideline. The principal reason for reserving judgment in this case was the need to consider with care the two guidelines for criminal damage offences, and to resolve the question of which was the correct one. This is not straightforward.[25]The lower value guideline is called Criminal damage (other than by fire) value not exceeding £5,000/ Racially or religiously aggravated criminal damage, Criminal Damage Act 1971, s.1(1), Crime and Disorder Act 1998, s.30. We shall call this “the lower guideline”.[26]The lower guideline starts with this introduction:- Criminal damage (other than by fire) value not exceeding £5,000, Criminal Damage Act 1971, s.1 (1) Triable only summarily (except as noted below*) Maximum Level 4 fine A fine must not exceed the statutory limit. Where this is expressed in terms of a ‘level’, the maxima are: Level 1 £200 Level 2 £500 Level 3 £1,000 Level 4 £2,500 Level 5 Unlimited (for offences committed after 13 March 2015)* *For offences committed before 13 March 2015 the level 5 maximum is £5,000 and/or 3 months’ custodyOffence range: Discharge – 3 months’ custody *Note: Where an offence of criminal damage: a) is added to the indictment at the Crown Court (having not been charged before) or b) it is an offence committed by destroying or damaging a memorial as defined by s22(11A) - (11D) of the Magistrates’ Courts Act 1980 committed on or after 28 June 2022 the statutory maximum sentence is 10 years’ custody regardless of the value of the damage. In such cases where the value does not exceed £5,000, the exceeding £5,000 guideline should be used but regard should also be had to this guideline. Racially or religiously aggravated criminal damage, Crime and Disorder Act 1998, s.30 Triable either wayMaximum: 14 years’ custody Triable only summarily (except as noted below*) Maximum Level 4 fine Racially or religiously aggravated criminal damage, Crime and Disorder Act 1998, s.30

Triable either wayMaximum: 14 years’ custody

[27]An A1 offence in the lower guideline has a starting point of a high level community order, and a range of medium level community order – 3 months (which is the maximum length of a custodial sentence where the limit on sentence resulting from section 40 of the Criminal Justice Act 1988 applies). The lower guideline contains the same guidance about the aggravated offence created by section 30 of the 1998 Act as does the higher guideline, which we have set out at [12] above.[28]We have set out the procedural history above to show what happened in the magistrates’ court. Section 22 of the Magistrates Courts Act 1980 provides:- 22. — Certain offences triable either way to be tried summarily if value involved is small.(1) If the offence charged by the information is one of those mentioned in the first column of Schedule 2 to this Act (in this section referred to as “scheduled offences”) then, the court shall, before proceeding in accordance with section 19 above, consider whether, having regard to any representations made by the prosecutor or the accused, the value involved (as defined in subsection (10) below) appears to the court to exceed the relevant sum. For the purposes of this section the relevant sum is £5,000.(2) If, where subsection (1) above applies, it appears to the court clear that, for the offence charged, the value involved does not exceed the relevant sum, the court shall proceed as if the offence were triable only summarily, and sections 19 to 21 above shall not apply.(3) If, where subsection (1) above applies, it appears to the court clear that, for the offence charged, the value involved exceeds the relevant sum, the court shall thereupon proceed in accordance with section 19 above in the ordinary way without further regard to the provisions of this section.(4) If, where subsection (1) above applies, it appears to the court for any reason not clear whether, for the offence charged, the value involved does or does not exceed the relevant sum, the provisions of subsections (5) and (6) below shall apply.(5) The court shall cause the charge to be written down, if this has not already been done, and read to the accused, and shall explain to him in ordinary language— (a) that he can, if he wishes, consent to be tried summarily for the offence and that if he consents to be so tried, he will definitely be tried in that way; and (b) that if he is tried summarily and is convicted by the court, his liability to imprisonment or a fine will be limited as provided in section 33 below.(6) After explaining to the accused as provided by subsection (5) above the court shall ask him whether he consents to be tried summarily and— (a) if he so consents, shall proceed in accordance with subsection (2) above as if that subsection applied; (b) if he does not so consent, shall proceed in accordance with subsection (3) above as if that subsection applied. (a) that he can, if he wishes, consent to be tried summarily for the offence and that if he consents to be so tried, he will definitely be tried in that way; and (b) that if he is tried summarily and is convicted by the court, his liability to imprisonment or a fine will be limited as provided in section 33 below. (a) if he so consents, shall proceed in accordance with subsection (2) above as if that subsection applied; (b) if he does not so consent, shall proceed in accordance with subsection (3) above as if that subsection applied.[29]It was not open to the magistrates to consider value under section 22(1) and to decide to proceed as if the offence were triable only summarily under section 22(2) because the offence charged by the information was not one of those mentioned in the first column of Schedule 2 to the 1980 Act. The offence charged was contrary to section 28 (actually 30) of the Crime and Disorder Act 1998. This is not an offence where the value involved is relevant to mode of trial, as a matter of law, although no doubt it would be to a discretionary decision as to whether to accept or decline jurisdiction.[30]The lower guideline certainly applies to an offence where the magistrates have applied section 22(2) and proceeded as if the offence were triable only summarily as the “basic offence” to which an “uplift” may be applied. This is consistent with the approach to religiously and racially aggravated offences across other offences. The higher guideline for criminal damage is another example, and there are 10 guidelines, including the two for criminal damage, where this approach is taken. Some of the offences are triable summarily only as the basic offence, but become either way offences if aggravated. Common assault and threatening behaviour, fear or provocation of violence contrary to section 4 of the Public Order Act 1986 are examples. Only one, the lower guideline, covers an offence where the basic offence is within schedule 2 to the Magistrates’ Court Act 1980. This is not strictly speaking a summary only offence but one where the magistrates must proceed as if the offence were triable only summarily if they make a determination that the value is less than £5,000.[31]There are two exceptions in the grey box in the guideline, replicated at [26] above, where a low value criminal damage offence is said to attract a maximum sentence of 10 years. The second deals with damage to memorials, which is the consequence of a statutory provision. It is not necessary to say anything more about that, but the first exception in the grey box is of some importance in the present case. This says that cases where a count of low value criminal damage which is addedto the indictment at the Crown Court(having not been charged before) attract a maximum penalty of 10 years. This is an elegant, but perhaps incomplete, way of expressing the effect of some quite complex statutory provisions, and some not entirely consistent decisions about them. Where a charge is treated as if it was triable only summarily following a value determination by the justices under section 22 of the 1980 Act, the sentencing powers are limited to a maximum of 3 months’ custody even if the case is sentenced in the Crown Court. Where the count is added to an indictment by amendment in the Crown Court there is no such cap. This is the effect of the decision of the Court of Appeal in R v Alden [2002] EWCA Crim 421. It is important to note that the part of the text of the guideline in the grey box is an attempt to encapsulate and apply the law, rather than a directive part of the guideline which the sentencing court must follow even if it concludes that the law is incompletely stated.[32]Section 40 of the Criminal Justice Act 1988 (“section 40”) is a key provision in this analysis. This provides a power to join certain listed offences in an indictment in certain circumstances. The list is common assault; assaulting a prisoner custody officer; assaulting a secure training centre custody officer; assaulting secure college custody officer; taking motor vehicle or other conveyance without authority; driving while disqualified; and, relevantly for our purposes, an offence mentioned in the first column of Schedule 2 to the Magistrates’ Courts Act 1980 (criminal damage etc.) which would otherwise be triable only summarily by virtue of section 22(2) of that Act.[33]Archbold 1-130 contains some notes of uncertainty about the correctness of the decision in Alden and its consistency with a later decision in Gwynn[2002] EWCA Crim 2951; [2003] 2 Cr. App. R.(S.) 41. “In Alden [2002] EWCA Crim 421; [2002] 2 Cr. App. R.(S.) 74, CA, it was held that where, following the then committal for trial process (which was then also covered by s.40), a count of simple criminal damage on which the defendant had not been committed for trial was included in an indictment, s.40 of the 1988 Act had no relevance where the committing magistrates had not gone through the procedure prescribed by s.22 of the MCA 1980 (§ 1-77) and, thus, had not concluded that the value involved was below the relevant sum to enable them to commit for trial, with the result that the Crown Court was not restricted to the maximum sentence that could have been imposed by the magistrates for that offence. In reaching this decision the court appears to have(a) been influenced by the decision in Fennell (§ 23-14) to the effect that criminal damage offences below the relevant value remain offences that are triable either way, although justices are obliged to treat them, in certain circumstances, “as if” they are summary only offences, and(b) not followed the unreasoned earlier decision in McKechnie, Gibbons and Dixon (1992) 94 Cr. App. R. 51, CA, which had treated a criminal damage charge as if it had been included in the indictment pursuant to s.40 of the 1988 Act in the sort of circumstances under consideration. However, in Gwynn [2002] EWCA Crim 2951; [2003] 2 Cr. App. R.(S.) 41, CA, it was held that where, following a sending for trial under s.51 of the CDA 1998 (§ 1-24), the indictment includes a count of criminal damage in respect of which there is no dispute that the value is below the amount specified in s.22 of the 1980 Act, s.40 of the 1988 Act operates to limit the sentencing powers of the Crown Court. In reaching that decision the court distinguished the decision in Alden, by reference to Sch.3 to the 1998 Act.”[34]Blackstone D11.19 also suggests a tension between Alden and Gwynn, and seeks to resolve it:
“Although included within the scope of s. 40, criminal damage is not, strictly speaking, a summary offence, even when the value involved is less than the relevant sum. The MCA 1980, s. 22, merely provides that, where it is clear that the value does not exceed the relevant sum of £5,000, the court 'shall proceed as if the offence were triable only summarily' (Fennell [2000] 1 WLR 2011; Considine (1980) 70 Cr App R 239). If the committing magistrates have not gone through the s. 22 procedure, the Court of Appeal has held that s. 40 will have no relevance, and the Crown Court is therefore not fettered by s. 40(2) to pass such sentence as could have been passed in a magistrates' court (Alden [2002] EWCA Crim 421). However, the Court of Appeal came to the opposite view in Gwynn [2002] EWCA Crim 2951. The distinction between the two cases lies in the stage at which the criminal damage count was added to the indictment. In Gwynnthe count had been on the indictment from the outset, and the court had applied its mind to the s. 22 consideration of the value of the criminal damage, whereas in Aldenthe count had been added once the case was in the Crown Court and s. 22 did not therefore arise.”
[35]Sentencing Procedure Principles and Practice Harris & Walker 2026 Edition B4-192, summarises note (a) in the grey box in the guideline and comments:- “It should be noted that while the Sentencing Council guideline indicates that this is clearly decided law, the issue is in fact more complex. In fact, the maximum sentence is only 10 years’ custody where the Crown Court itself adds the offence to the indictment; where the magistrates’ courts have determined the value of the offence is £5,000 or less and that it is a summary only offence but have sent the offence to the Crown Court for trial (under s40 of the Criminal Justice Act 1988 or otherwise) the offence remains punishable only by up the three months’ imprisonment by virtue of .s.40(2) of the 1988 Act; R. v Alden. Similarly, where the offence is on an indictment as sent under s.51 of the Crime and Disorder Act 1998, by virtue of para. 14 of Sch. 3 to that Act the Crown Court must make a finding as to whether the offence is low-value criminal damage and is limited to the magistrates’ courts powers if it is: R. v Gwynn and R. v Tuplin [2009] EWCA Crim 1572. Furthermore, it is the magistrates’ courts’ decision as to the apparent value of the damage at the time on the basis of the representations then made, that is the critical factor; following committal there is no power to challenge that on the basis that the damage was later established not to have exceeded £5,000: R. v Alden; R. v Downs.”[36]The decisions of this court in the cases cited in the textbooks deal with complex procedural provisions and may not be entirely consistent with each other. It is not wholly clear that paragraph 14 of Schedule 3 to the Crime and Disorder Act 1998 bears the interpretation applied to it in Alden and Gwynn. It only applies “where the Crown Court has to determine, for the purposes of this Schedule, whether an offence which is listed in the first column of Schedule 2 to the 1980 Act (offences for which the value involved is relevant to the mode of trial) is a summary offence.” [emphasis added]. The Schedule provides a procedure to be followed in the Crown Court after an offence has been sent for trial and where the court’s powers if it is a summary offence are limited in a number of significant respects, see paragraph 6.[37]The present case is not a suitable occasion on which to attempt to unravel these complications. We have heard no argument about them and the offence with which we are concerned is not, and never can be, a summary offence or an offence which it to be treated as if it were. The relevance of all this in this case is that a low value offence of criminal damage may be triable either way and subject to a maximum penalty of 10 years depending on how it came to appear on the Indictment. In that event, the higher value guideline applies, but the court should have regard to the lower value guideline.[38]In this case, there is no way of knowing what the maximum penalty for the “basic offence” would have been, because it was never charged and never appeared on the Indictment. How it got there, which is the determining factor when considering the powers of the Crown Court, is therefore an unanswerable problem. This will always be true of a case where only the aggravated form of criminal damage contrary to section 30 of the 1998 Act is charged. It will not be possible to determine the maximum penalty for the basic offence, but is the maximum penalty for the offence which determines which guideline should be followed, see the text in the grey box above.[39]The logic in Alden provides that an offence of criminal damage, whatever its value, is an either way offence with a maximum penalty of 10 years unless a judicial decision has been made in the magistrates’ court under section 22 of the MCA 1980 (or, if Gwynn is rightly decided, in the Crown Court under paragraph 14 of Schedule 3 to the 1998 Act) which caps the sentencing powers to a maximum custodial term of 3 months. In this case no such judicial decision was ever made, and the basic offence should be treated as one which was an either way offence with a maximum penalty of 10 years. The judge was therefore right to use the higher guideline, although not necessarily for the reasons he gave.

Discussion and result

[40]The starting point in the higher value guideline for a basic offence in category A1 was 18 months, a level which includes “Serious distress caused” and “Serious consequential economic or social impact of offence” as factors elevating it to a category 1 case for harm in the guideline. The sentencing range goes up to 4 years. The “value” of the damage, actually the cost of removal of the writing from the walls, is one relevant factor in assessing the harm and culpability involved in the offence. The judge’s assessment of a sentence before any increase to reflect the aggravated offence of 18 months cannot be faulted, and, importantly, did not involve any increase within the sentencing range to reflect the weight of the two harm factors just mentioned or the aggravating feature of the basic offence identified in the guideline of “established evidence of community/wider impact”. The judge properly left his further adjustment of the sentence to reflect the gravity of those aspects of this case for consideration at the stage of the uplift.[41]There is, in our judgment, a problem created by the approach set out in the lower value guideline for criminal damage. It is unique to this offence because it is only criminal damage which attracts a wholly different sentencing regime if the offence caused economic loss of less than £5,000. In all other cases where a summary offence may become an offence triable either way if it is religiously or racially aggravated the value of economic loss caused by it is not a factor which, as a matter of law as opposed to discretion, affects the maximum penalty available for the basic offence. In simple or basic cases of criminal damage, of which spray painting the initials of a favourite football team on a wall may be a paradigm example, the repair or replacement costs caused are a good way of determining the seriousness of an offence which is always at the lower end of seriousness. In aggravated cases such as the present, where the spray painting is designed to cause fear and distress, and designed as a call to action against a community, the cost of removing the words from the walls is not the most significant factor in assessing the seriousness of the offence. The harm done rests in the minds of people, not on the walls.[42]It is hard to see how assessing the sentence for a basic low value offence where the sentencing powers are capped to those of the magistrates’ court, for example one involving a football club’s name, and then applying an uplift will be a helpful way of arriving at a sentence. The mismatch between the available sentencing powers for the basic and the aggravated offence is far less acute if, as we have held, the higher value guideline is the appropriate one to follow in cases where only the aggravated offence has ever been actually charged. Both the higher and lower value criminal damage guidelines leave the level of the uplift at large for assessment by the sentencer, and are not prescriptive in any way at that stage of the process. The court follows these guidelines by making its own assessment of the final sentence. It was at this point in his assessment that the judge turned to Rezazadeh. Where, as here, a guideline leaves an important part of the sentencing process to the judgment of the court, it remains appropriate for the sentencing court (and this court) to have regard to prior decisions of the Court of Appeal Criminal Division. The limitations of that process are well known. All cases are different and depend on their facts. Most decisions in sentence appeals are not intended to give any guidance for other cases. A decision such as Rezazadeh only decided that the particular sentence in that particular case was not manifestly excessive or wrong in principle. However, with those observations in mind, it was a useful check for the judge to apply. His sentence was significantly less than that upheld in Rezazadeh. That is a clear indication that it was not manifestly excessive.[43]At [40] above we have identified the way in which the judge ensured that there was no double counting of the elements of the offence which had elevated the case into category A1. They played a part in selecting the starting point of 18 months, but their particularly grave nature in this case required a significant further uplift at the stage where the court considered the impact of the aggravated form of the offence. In doing so, the judge remained well within the sentencing range available in the guideline for the basic offence. In our judgment he was clearly right to do so.[44]Persuasively as they were argued, and for the reasons given above, we are unable to accept Mr Price’s first submission that the wrong guideline was used or his second submission that there was an element of double counting.[45]We would add that the sentence imposed could be justified even if the judge had been required to follow the lower value guideline. In that event, the sentence would have been primarily driven by the “uplift” at the stage when the impact of the religious or racial aggravation was assessed. If one imagines the basic offence as being, for example, spray painting the initials of a football club the sentence would certainly have been non-custodial, probably a fine. That notional outcome could not usefully influence the determination of the sentence for the offences which were actually committed.[46]We therefore dismissed the appeal.