Practice and Procedure


PUBLISHED September 26, 2003

There was insufficient evidence before the judge to justify a longer than commensurate sentence under s.80(2) Powers of Criminal Courts (Sentencing) Act 2000. However the sentence of twelve years' imprisonment was appropriate for these offences.Appeal against sentence by the defendant ('C') who was sentenced to a total of twelve years' imprisonment on six counts: (i) C was convicted of attempting to cause grievous bodily harm with intent to resist lawful apprehension and was sentenced to twelve years' imprisonment; (ii) C pleaded guilty to aggravated vehicle taking and was sentenced to two years' imprisonment concurrent; (iii) C pleaded guilty to dangerous driving and received 18 months' imprisonment concurrent; (iv) C was sentenced to twelve months' imprisonment concurrent on his plea to assault with intent to resist his lawful apprehension; (v) following his conviction of attempted robbery he was sentenced to seven years' imprisonment concurrent; and (vi) following his plea to burglary he was sentenced to five years' imprisonment concurrent. The offences were committed while C was on licence following his release from custody under earlier sentences for theft and dangerous driving. On sentencing the judge stated that he had regard to the totality principle and that the sentence was longer than commensurate because C presented a serious risk to the public good. C submitted that the judge was not entitled to pass a longer than commensurate sentence in the exercise of his powers under s.80(2) Powers of Criminal Courts (Sentencing) Act 2000 because: (a) there was insufficient evidence before the court that such a sentence was necessary to protect the public from serious harm from C; (b) the judge failed to give warning that he was considering passing such a sentence; and (c) the judge failed to state what part of the sentence was passed as commensurate with the seriousness of the offence and what part was passed to protect the public.HELD: (1) It was not clear that it had been in the forefront of the judge's mind that he was exercising his powers under s.80(2)(b) of the 2000 Act. It was also not clear that there was sufficient material to justify the judge exercising his powers given by the section and he had not forewarned counsel. However it was not necessary for the judge to identify what part of the sentence was commensurate and what part was added for public protection. (2) The judge created a difficulty for himself by deciding to pass concurrent sentences which would have been avoided if he had passed consecutive sentences for the major offences. Twelve years' imprisonment as a total sentence for these offences was not excessive. If regard was had to totality twelve years was appropriate. (3) Each sentence would be substituted with consecutive and concurrent sentences totalling twelve years' imprisonment.Appeal allowed to limited extent.

[2003] EWCA Crim 2572