Sentencing cases

Appeals to the Crown Court


When a defendant has appealed to the Crown Court against sentence, it is not proper to increase the sentence on the basis that the magistrates should not have sentenced the case but should have committed it to the Crown Court. The failure so to act is an irrelevant consideration (R (Lees-Sandey) v Chichester Crown Court (2004) The Times, 15 October).


On an appeal by one defendant against sentence, a court must explain any disparity in sentencing with that imposed on a co-defendant, even when that sentence was imposed in the magistrates' court (R (K) v Newport Crown Court (2004) The Independent, 20 December).




Obligatory sentencing


Section 51A of the Firearms Act 1968, introduced by the Criminal Justice Act 2003, imposes minimum sentences of five years for adults (and three years for youths aged between 16 and 18) who commit a defined list of offences involving the possession of a firearm.


However, note that there is no availability of a discount for guilty plea in these cases. Unless a sentence in excess of five years is to be expected, there will be no benefit in making admissions in the police station. Furthermore, possession of an unarmed but lethal firearm for three years could not amount to exceptional circumstances for avoiding the five-year minimum, even if a defendant believed that the gun was a replica.


However, had there been exceptional circumstances, any proper sentence could have been imposed (R v Jordan Alleyne & Redfern [2005] Crim LR 312). If a defendant faces any other form of firearms offence other than those in section 51A, the five-year minimum is not a relevant consideration for the court (Attorney-General's reference number 114/2004 Steven McDowell [2005] Crim LR 142).




Confiscation


A stream of cases has continued to emphasise the Draconian nature of confiscation proceedings. R v Azlam [2005] Crim LR 145 has confirmed that the Crown may elect, for confiscation purposes, not to proceed on earlier allegations so as to take the benefit of later more severe provisions.


The calculation and valuation of benefit for confiscation purposes is compulsory and cannot leave out of account the value of the defendant's share of the family home, notwithstanding that this may then require a sale. Different considerations may apply at the enforcement stage (R v Ahmed and Qureshi [2005] Crim LR 240). However, realisable assets do not include a future contract for services that could be terminated at will (R v Adams (2004) The Times, 6 December). For the purposes of assessing benefit, a defendant obtained all the property in a joint account and not just his share or proportion (R v May & Others (2005) The Times, 15 February).




Guideline cases


The Court of Appeal has continued to issue a series of guideline judgments. R v Page and Others (2004) The Times, 23 December, has emphasised that, for individual isolated shoplifters, custody should be the last resort.


In R v Graham and Whatley [2005] Crim LR 247, the leading case on benefit fraud was confirmed to be R v Stewart (1987) 9 CR APP R (S) 135, but with allowances for the effects of inflation. The sentence levels for the use of false passports were increased by the case of R v Kolawole [2004] Crim LR 245, at least in relation to commercial use.


In R v Afonso [2005] Crim LR 72, it was emphasised that a drug treatment and testing order should be the normal sentence where the sole motive for the supply of class A drugs at street level was to feed the defendant's own addiction, and the more so where the person supplied was an undercover police officer.


Where such an order could not be made or was breached, the tariff has been reduced to two to two-and-a-half years, with less for young offenders. That all guidelines are directory and not to be treated as binding but rather required adjustment to individual circumstances was confirmed by R v Attuh Benson [2005] Crim LR 243. Guidelines in relation to the Sexual Offences Act 2003 will eventually be issued by the Sentencing Guidelines Council, but in the meantime, assistance can be derived in relation to rape and sexual assault in R v Garvey (Attorney-General's reference 104/2004 [2004] EWCA Crim 2672 (see compendium published by the Sentencing Guidelines Council)).




Non-jury trials


A trial without a jury is now possible at the Crown Court where there is sufficient evidence of jury tampering. This can occur first when the Crown applies for a trial by judge alone, on the basis that there is evidence of a real and present danger that jury tampering would take place (such as a previous jury being discharged, previous tampering in a trial involving the same defendants, or the intimidation of witnesses) and, notwithstanding steps which might reasonably be taken, the likelihood of tampering is so substantial as to make it necessary in the interests of justice.


These applications will always be made at preparatory hearings so that there can be an interlocutory appeal. Alternatively, if a trial is underway but a jury is discharged because a judge was satisfied that there was jury tampering, a trial by judge alone may be ordered where to continue without the jury would be fair to the defendant or may be in the interests of justice. Such a ruling is also subject to a right of appeal to the Court of Appeal.


By Anthony Edwards, TV Edwards, London