Section 51 sendings

R v Webster [2004] Crim LR 238


The court has clarified an important issue in relation to obligatory sentencing. This was what amounted to a ‘conviction’ for a domestic burglary where each relevant offence had been committed on or after


1 December 1999, thus requiring on a third conviction the obligatory sentence of three years, in the absence of circumstances making such a sentence unjust.


The defendant undoubtedly had one relevant conviction. However, he had then committed a second offence and indicated a guilty plea to that offence at a plea before venue hearing. He had been committed for sentence. He was then brought before the magistrates for a third domestic burglary. It was held that his earlier indication of a guilty plea was a conviction and thus the new domestic burglary was an indictable-only offence that had to be sent to the Crown Court under section 51 of the Crime & Disorder Act 1998.


There was a distinction drawn in that Act between a conviction and the completion of the imposition of the relevant sentence.


Discount


R v Wilson [2004] The Times, 12 February


This case has important consequences for clients when they are advised about the possible discount for early indication of a guilty plea.


The court held that a full discount need not be given where a defendant had merely indicated to the Crown that he was prepared to enter a plea to a lesser offence when the Crown had not taken up the offer and the plea was itself only entered at the time of trial. Thus, if a plea is to be entered to a lesser offence, it is important that this is brought to the attention of the court and not just of the prosecution. The plea and directions hearing provides one opportunity, although a letter to the court would provide another. However, often the actual plea is withheld as a negotiating factor to encourage the Crown not to proceed on a more serious charge in such circumstances that the discount may be lost.


Aggravating and mitigating circumstances


The fact that a defendant was on bail was an aggravating factor if he committed an offence while on bail, even if he was later acquitted of the original offence (R v Thackwray [2003] The Times, 25 November). However, a court should have no regard to the effect of home detention curfew, as its use was discretionary in the hands of a prison governor (R v Al-bahairi [2004] Crim LR 147).


Secondary sentencing


The courts now enjoy a wide range of powers to impose secondary sentences at the time that they dispose of a case. The jurisdiction has been considered in a number of different areas.


The use of a restraining order (now a sexual offences prevention order) on conviction of a relevant sexual offence could only be made if there was material satisfying the court that it was necessary to make such an order to protect the public from serious harm. The penalty had to remain proportionate. Thus an order prohibiting access to a computer for an indefinite time was too great a penalty, particularly as breach of such an order resulted in a possible five years’ imprisonment and an indefinite requirement to notify the police of the defendant’s whereabouts (R v Holloran [2004] The Times, 11 February).


A restraining order not to work with or in the vicinity of children for 20 years following an indecent assault in the presence of children but not directed against them must contain no greater interference with liberty than was proportionate.


In R v Yates [2003] Crim LR 903, there was no evidence that the defendant was to work with children and this was a case in which the power to exclude the defendant from working with children did not arise as the sexual offence was not against the child. Similarly, the court discretion to impose a travel restriction order on a conviction for drug trafficking had to be relevant to the reduction of the risk of re-offending after release and to be proportionate. While the powers were available for drugs offences beyond importation, the mere existence of an importation offence was not itself enough to satisfy the test. However, there was no reason why an order should be restricted to particular parts of the world, as dealing in drugs was a worldwide business (R v Mee [2004] 148 SJ 267)


A compensation order could be made by a court if the minimum loss was clear, even if there was complexity in calculating the full loss (R v James [2003] 2 Crim App R 575).


Drug treatment and testing orders


Two cases have usefully summarised the way in which drug treatment and testing orders should be used by the courts.


In R v Bell [2003] 147 SJ 1238, it was made clear that such an order should not be rejected simply because a custodial sentence would otherwise have been appropriate. However, the sentence should have a realistic prospect of reducing drug addiction.


The original sentence in that case had been 33 months on a plea of guilty for offences including burglary. However, in Attorney General Ref 64 of 2003 (Boujettif) [2003] The Times, 1 December, it was made clear that the order was wholly inappropriate for a large number of offences of aggravated burglary with women being threatened with a knife and the defendant having 22 previous convictions.


The court emphasised that the order was intended to be used to increase the numbers under treatment and that the sentence is effective because of high levels of testing and contact.


But it must also have a realistic prospect of reducing drug addiction and there needed to be some evidence that the defendant was determined to free himself of drugs. It was unlikely to be appropriate where serious violence was involved.


By Anthony Edwards, TV Edwards, London