SENTENCING

The power of the Court of Appeal (Criminal Division) to order a venire de novo did not include a power to declare a summary trial a nullity, or quash a conviction recorded in such proceedings and remit the matter for retrial. Venire de novo was concerned only with trial on indictment, and with fundamental irregularities rendering such a trial a nullity.

[2018] EWCA Crim 95

When determining the period of imprisonment to be imposed in default of full payment of a confiscation order made in the Crown Court, accrued interest was not included in the starting point under the Magistrates’ Courts Act 1980 s.79(2) for the purpose of the calculation of the reduction in days of imprisonment when giving proportionate credit for part-payment of the order. The natural construction of s.79(2) was that the starting point was the sum outstanding at the time of the Crown Court order.

[2018] UKSC 2

A minimum term of 30 years imposed in connection with a life sentence for murder was justified where the offender had been convicted on the basis of a joint enterprise. A case would normally fall within the Criminal Justice Act 2003 Sch.21 para.5 if it was a murder involving the use of a firearm, and the wording of that provision was not confined to the person who had pulled the trigger.

[2018] EWCA Crim 19

Sentences imposed on four offenders for terrorist offences contrary to the Terrorism Act 2000 s.12 were not manifestly excessive where the evidence showed that they were deeply radicalised members of a proscribed organisation, known as ISIS. Speeches they had made at planned live meetings to specially selected audiences during the month of Ramadan in 2015 were clearly supportive of terrorism and would have increased support for ISIS and its aims, although there was no direct link between the speeches made and any terrorist or violent act by any member of the audiences.

[2018] EWCA Crim 21

The court considered the definitive sentencing guideline on corporate manslaughter, health and safety and food and safety hygiene offences when significantly reducing the fine imposed on a company following the death of a contractor on its premises. The company, a “very large organisation” for the purposes of the guideline, had pleaded guilty to an offence under the Health and Safety at Work etc. Act 1974 s.3(1) which occurred in unusual circumstances and involved low culpability and a low likelihood of harm.

[2017] EWCA Crim 2186

When considering the terms of a sexual harm prevention order, the guidance in R. v Smith (Steven) [2011] EWCA Crim 1772 on restrictions on internet access and use remained generally sound and should continue to be followed. However, developments in technology and changes in everyday living called for an adapted and targeted approach in certain specific areas. That was especially so in relation to risk management monitoring software, cloud storage and encryption software.

[2017] EWCA Crim 2163

It was not appropriate for the court to adjust a sentence to make allowance for a period of time which an offender had spent on remand in relation to a European arrest warrant which was subsequently withdrawn, when he would otherwise have been on qualifying bail in relation to the offence for which he was sentenced. Although the court had a residual power to adjust a sentence in order to correct an injustice, the case did not meet the test of exceptionality and there had been no conspicuous injustice.

[2017] EWCA Crim 2149

The court considered the extent to which a mental disorder could be relevant to an assessment of “the circumstances of the defendant” when considering the partial defence of loss of control under the Coroners and Justice Act 2009 s.54(1).

[2017] EWCA Crim 2061

An individual who pleaded guilty to numerous contempts of court, which included deliberately erasing data from his electronic devices and transferring them to another person, was sentenced to 14 months’ imprisonment.

A sentence of 10 months’ imprisonment imposed following a conviction for kidnapping was not unduly lenient where an offender with learning difficulties had used minimal force to detain his fiancee for a maximum of ten minutes and where the offence had no lasting effect on the victim, who had been in a relationship with the offender for three years and still intended to marry him.

A sentence of six years’ imprisonment for gross negligence manslaughter was appropriate where a restaurant owner had persistently failed over several months to take steps to ensure that customers suffering from peanut allergies were not served with food containing peanuts. Even after one customer had suffered a violent allergic reaction, he did not improve his systems, with the consequence that another customer died after suffering an allergic reaction.

[2017] EWCA Crim 1783

A sentence of nine years’ imprisonment was appropriate in the case of an offender who had been convicted of causing grievous bodily harm with intent after carrying out a sustained assault on his tenant.

[2017] EWCA Crim 1869

The appellant, who had been sentenced to an extended sentence of six years and eight months after pleading guilty to making indecent photographs of children and breaching a sexual offences prevention order, had not made out his challenge to a sexual harm prevention order which had been imposed on him.

[2017] EWCA Crim 1823

A sentence of imprisonment had not been justified where an offender had pleaded guilty to obstructing an engine or carriage using a railway under the Malicious Damage Act 1861 s.36. The offender’s articulated lorry had become trapped under the barrier of a level crossing after he drove onto the crossing while an amber warning light was activated. His offending had not been deliberate and a fine of £750 was appropriate, together with a 12-month disqualification from driving.

[2017] EWCA Crim 1736

The court reduced, from 11 years to 10 years’ imprisonment, the sentences imposed on the parents of a 17-week-old child following their convictions for causing or allowing her death. Although there were numerous aggravating features, including an attempt to cover up the circumstances of her death, insufficient weight had been given to the finding that the parents had had constructive, rather than actual, knowledge of the significant risk of serious harm to their child.

[2017] EWCA Crim 1686

The court gave guidance on the considerations to take into account when sentencing for an offence of reckless arson.

[2017] EWCA Crim 2299

A sentence of three years and nine months’ imprisonment was appropriate in the case of a man who had been convicted of possessing a firearm with intent to cause fear of violence.

[2017] EWCA Crim 1742

A sentence of four years’ imprisonment was appropriate in the case of a 25-year-old gang member who had pleaded guilty to firing an imitation firearm at rival gang members during a street fight. Although gang members had to understand that the use of imitation firearms would be severely punished, the offender’s lack of previous convictions made a longer sentence inappropriate.

[2017] EWCA Crim 1713

When deciding whether it was in the interests of justice to refer sentences imposed on offenders who had given assistance to prosecuting authorities back to the sentencing court pursuant to the Serious Organised Crime and Police Act 2005 s.74, consideration of the interests of justice involved an open-ended deliberation. Section 74(3) did not impose any constraints on how the prosecutor should approach the question.

[2017] UKSC 63

The Crown Court had been wrong to direct that the time spent by an offender on a qualifying curfew before a suspended sentence should not count towards his sentence once it had been activated; it had no discretion to do so under the Criminal Justice Act 2003 s.240A. The error was symptomatic of the labyrinthine nature of criminal sentencing legislation with which the courts had to deal.

[2017] EWCA Crim 1589

A judge had not erred in imposing a sentence of life imprisonment upon an offender who pleaded guilty to manslaughter on the basis of diminished responsibility, rather than hospital and restriction orders under the Mental Health Act 1983 s.37 and s.41. Although fresh evidence had been produced, to the effect that the offender had been suffering from schizophrenia at the time of the offence, that evidence did not establish that the offending was entirely due to mental disorder. Even on the basis of the fresh evidence, the judge could not have concluded that the most suitable method of disposing of the case was by way of a s.37 order.

[2017] EWCA Crim 1460

A sexual harm prevention order should not be made for an indefinite period without careful consideration. All concerned in making such orders should be alert to the fact that the effect of an order of longer duration than the relevant statutory notification requirements had the effect of extending the operation of those requirements. Inadvertent extension of the requirements was to be avoided.

[2017] EWCA Crim 1464

An extended sentence of six years, comprising a custodial term of 18 months and an extension period of four and a half years, was appropriate in the case of a 50-year-old man who had pleaded guilty to attempting to incite a child to engage in sexual activity.

[2017] EWCA Crim 1601

An extended sentence of 10 years, comprising a custodial term of six years and an extended licence period of four years, was appropriate in the case of the appellant following his pleas of guilty to arson and aggravated burglary.

[2017] EWCA Crim 1620

A total sentence of seven years and eight months’ detention was appropriate in the case of a young offender who had pleaded guilty to possessing Class B drugs, a sub-machine gun and compatible ammunition, having been pressured into holding them for a third party. Those who looked after lethal weapons for others had to expect severe sentences.

[2017] EWCA Crim 1509

A sentence of three years’ imprisonment was appropriate for an offender who had pleaded guilty to breaching a sexual offences prevention order. The offender was an entrenched paedophile who had groomed two women, buying Christmas presents for their children and accepting photographs of the children from them. He clearly represented a real and ongoing danger to children. However, it was relevant that the photographs had been given to him rather than him procuring them and that after six weeks he had handed them back to the mother who gave them to him.

[2017] EWCA Crim 1439

A sentence of two years’ imprisonment, suspended for two years, was unduly lenient for 36 incidents of perverting the course of justice by providing false details on behalf of motorists caught speeding or failing to stop at traffic lights. After allowance for the guilty plea, the appropriate sentence was three years’ immediate imprisonment.

[2017] EWCA Crim 1357

A total sentence of two years and eight months’ imprisonment was appropriate for an offender who had created and used a false Facebook profile to send unsolicited messages to five women and young girls requesting intimate photographs and threatening them when they refused.

[2017] EWCA Crim 1399

A total sentence of two years and six months’ imprisonment was appropriate following pleas of guilty to burglary and theft of a car. The offender had entered the house of his ex-girlfriend without permission, threatening her with a screwdriver and taking her car keys before stealing her car. The burglary came within Category 1 of the definitive guidelines and was seriously aggravated by the offender’s appalling criminal record and the domestic violence element of the offence.

[2017] EWCA Crim 1398

A maximum sentence of two years’ imprisonment for dangerous driving and six months concurrent for assault by beating was not excessive. The offender had used his car as a weapon, deliberately driving at and hitting the victim.

[2017] EWCA Crim 1449

The Court of Appeal urged greater vigilance by advocates involved in sentencing hearings before the Crown Court. Three convictions for shoplifting were quashed as they were summary-only offences valued at less than £200 and should not have been included in the indictment.

[2017] EWCA Crim 1233

The appropriate sentence where an offender who had attacked police officers with a hammer had pleaded guilty to two counts of attempting to cause grievous bodily harm with intent, was life imprisonment with a minimum term of three years, taking into account the offender’ guilty plea, the early release provisions, and the time that he had already spent in custody.

A sentence of two months’ imprisonment for bringing a controlled drug into a prison was appropriate despite the fact that the offender was a carer for her disabled daughter and grandchild. The judge had also been entitled to activate part of the offender’s suspended sentence for a different offence and order it to run consecutively.

[2017] EWCA Crim 1273

A sentence of two years’ imprisonment following a guilty plea to two counts of fraudulent evasion of duty contrary to the Customs & Excise Management Act 1971 s.170(2) was manifestly excessive in circumstances where the offender had become involved in the criminal activity through coercion and intimidation. A sentence of 18 months’ imprisonment suspended for two years with a two-year supervision requirement was substituted.

Prisoners whose death sentences for murder had been commuted to long sentences of hard labour by way of presidential pardon had received lawful sentences. However, as some of those pardons had been granted in batches without any opportunity for individual representations, they required remission to the President for reconsideration.

[2017] UKPC 25

A judge’s intervention and direction to the jury during defence counsel’s closing speech did not affect the safety of a defendant’s conviction. She ought to have put to counsel what she intended to say before she said it, and if she intended to criticise him in front of the jury, she ought to have raised that with him first. Overall, however, the summing-up was thorough and fair.

[2017] EWCA Crim 1174

A total sentence of three years and eight months’ imprisonment was appropriate in the case of a woman who had been convicted of eight offences of fraud (she had secured or attempted to secure tenancies of expensive properties by lying about her financial and other circumstances), two offences of using a false instrument with intent and one offence of threatening to take revenge.

[2017] EWCA Crim 1209

The prosecution’s failure to disclose a local authority report following a fatal collision on a pedestrian crossing did not render unsafe a conviction for causing death by careless driving when unfit through drink, because the report could have had no real impact on the issue for the jury which was whether the appellant was unfit through drink.

[2017] EWCA Crim 1331

It was appropriate to proceed with a claimant’s committal application in a defendant’s absence where the breaches were serious and the defendant had deliberately chosen not to attend court and left the jurisdiction. Contempt of court was proved to the criminal standard, and he was sentenced to one years’ imprisonment.

The court emphasised the importance of properly structuring the extension period to the length of a period of disqualification from driving as required by the Road Traffic Offenders Act 1988 s.35A and s.35B, and in accordance with the guidance in R. v Needham (Paul Maurice) [2016] EWCA Crim 455.

[2017] EWCA Crim 1243

The imposition of a sentence of imprisonment for public protection on the appellant shortly before the introduction of new legislation which prevented the passing of such a sentence on offenders in his position had not given rise to a breach of ECHR art.7 or the lex mitior principle.

[2017] EWCA Crim 1052

A sentence of 18 months’ imprisonment was imposed for numerous, deliberate breaches of a freezing injunction and a disclosure order including failing to deliver up a passport, and lies about ownership or interests in 30 bank accounts and eight properties.

[2017] EWHC 1860 (Ch)

An extended sentence of 18 years and five months, which included a custodial term of 13 years and five months, was appropriate in the case of the appellant, who had pleaded guilty to conspiracy to rob and to three offences of having an imitation firearm with intent.

[2017] EWCA Crim 1151

Where four men had attacked another man by punching him and stamping on him, convictions against two of them for causing grievous bodily harm with intent under the Offences Against the Person Act 1861 s.18 were quashed and substituted with convictions for causing grievous bodily harm under s.20, as medical evidence not adduced until after trial strongly suggested that a blow from one of the others had caused the victim’s brain injury. The further evidence was demonstrably credible, it had been positively agreed and was highly relevant.

[2017] EWCA Crim 1325

The judge’s summing-up, in a trial of three defendants on a charge of conspiracy to commit fraud by false representation, was not unfair.

[2017] EWCA Crim 1007

It was good discipline for any judge delivering a judgment on a committal application to set out each relevant ground of committal before proceeding to consider whether it was made out on the evidence. In the instant case, the judge had not confined himself to the contempt alleged in the application notice.

[2017] EWCA Civ 973

A sentence of 45 months’ imprisonment after an offender’s guilty plea to 13 distraction burglaries targeting elderly and vulnerable victims was unduly lenient. The judge should have applied a 10-year starting point before making a deduction for the guilty pleas, resulting in a sentence of 7 years and 6 months’ imprisonment.

[2017] EWCA Crim 1256

The court quashed a sentence of custody for life imposed in 2002 on a young offender for attempted murder. In the light of fresh psychiatric evidence, which confirmed that the offender had been suffering from a psychopathic disorder at the time of the offence, hospital and restriction orders were appropriate.

[2017] EWCA Crim 937

In sentencing the appellant for robbery, the judge had erred by only allowing a 20% discount for his guilty plea. Given the stage at which the plea was tendered, the appropriate discount was 25%.

[2017] EWCA Crim 1046

Sentences of 13 years’ and nine years’ imprisonment were appropriate in the case of two men who had been convicted of manslaughter (one having pleaded guilty) after ambushing a man delivering pizzas and using violence to rob him.

[2017] EWCA Crim 986