Tovey & Anor v R

A defendant may be sentenced only for offences proved by verdict, admitted, or clearly accepted for the court to take into consideration. A count cannot be treated as a specimen of wider, uncharged offending which the defendant has denied or not admitted. Reasonable inferences from the trial evidence do not qualify that rule.

A wider course of conduct may be charged as a single continuous offence only where that course is fairly one activity and the procedure causes no unfairness. In sentencing proved individual counts, however, the court may consider admissible context bearing on their gravity and motive, provided it does not punish the defendant for separate unproved offences.

The court heard two appeals against sentence concerning the use of sample or specimen counts in cases of repeated offending.

Smith was convicted after trial of three indecent assaults on a child. The sentencing judge treated one count as a sample of repeated assaults over several years and imposed five years’ imprisonment. His case was referred by the Criminal Cases Review Commission.

Tovey pleaded guilty to weapons and explosives offences and was convicted after trial of two racially aggravated criminal-damage counts. Although evidence was called of 17 similar graffiti incidents, he denied responsibility for all of them. The judge treated the two counts as specimens and imposed a consecutive three-year sentence. The central issue was whether sentencing could reflect uncharged and unadmitted repetitive offending.

1. Disposition. Smith’s appeal was allowed. His five-year sentence on count 2 was quashed and replaced with three years’ imprisonment, concurrent with the other sentences. Tovey’s appeal was dismissed.
2. A sentencing court may punish a defendant only for an offence proved by verdict or admission, or for other offending which the defendant has clearly admitted and accepted for consideration. Per the court’s application of R v Canavan [1998] 1 Cr App R 70, it is inconsistent with principle to use a count as a specimen for uncharged offences which the defendant has denied or declined to admit. The judge cannot cure that defect by drawing what appear to be reasonable inferences from the evidence. That course would deprive the defendant of a jury trial on the additional allegations.
3. A clear basis of plea accepting a wider course of conduct is equivalent to an informal invitation to take that conduct into consideration. There need be no excessive technicality, provided there is a clear admission or finding of guilt.
4. The court approved the limited continuous-offence approach. It can be used where the alleged acts truly form one activity, the prosecution and defence cases are the same across the acts, and no unfairness results. In a jury trial it is unsafe unless the verdict can establish the extent of offending, which may require special verdicts.
5. In cases of multiple offending, the proper practical solution will usually be an indictment containing sufficient examples, but no more, to demonstrate the pattern, period and gravity of the offending. The court also identified a possible use of Rule 5(2) of the Indictment Rules 1971, subject to section 3 of the Indictments Act 1915.
6. Smith’s sentence impermissibly treated count 2 as a sample of repeated assaults. By contrast, Tovey had to be sentenced for two individual criminal-damage counts only, but their seriousness could properly be assessed in the admissible context of his racism, possession of an arsenal, and the inferred motive to foment inter-communal hostility. The consecutive three-year sentence was therefore justified and not manifestly excessive.

• Court of Appeal (Criminal Division)—In [2005] EWCA Crim 530, Smith’s sentence appeal, referred by the Criminal Cases Review Commission, was allowed and his five-year sentence was reduced to three years. Tovey’s sentence appeal was dismissed.
• Crown Court at Exeter—Smith was convicted after trial of three indecent-assault counts. The judge imposed concurrent terms, including five years on a count treated as a sample of repeated assaults.
• Crown Court at Oxford—Tovey pleaded guilty to weapons and explosives counts and was convicted after trial of two racially aggravated criminal-damage counts. He received a total of 11 years’ imprisonment, including a consecutive three-year term for the criminal-damage counts.