Cain & Ors, R v

Sentencing advocates for both prosecution and defence must assist the court to impose a lawful sentence. The prosecution must identify statutory limits on sentencing powers and should be ready to identify relevant sentencing guidance.

A sentence exceeding the maximum applicable when the offence was committed is unlawful. A later increase in the maximum penalty cannot be applied retrospectively. Where summary offences are committed to the Crown Court for sentence, the Crown Court remains subject to the magistrates’ individual and aggregate sentencing limits. Consecutive orders must not circumvent those limits. Statutory requirements concerning remand credit and ancillary orders must also be observed.

Four appeals were heard together because each involved one or more unlawful sentences. The court considered sentences imposed after convictions or guilty pleas in the Crown Court at Leeds, Birmingham and Lewes.

Cain had been convicted of historic sexual offences. Some sentences exceeded the maxima applicable when the offences were committed, and one count alleged indecency with a child under 14 although the complainant was 15 at the relevant time. Benton, Liversidge and Hodson had summary offences committed to the Crown Court for sentence. Their sentences raised questions about the continuing limits of magistrates’ sentencing powers, consecutive terms, remand credit and ancillary orders.

The common issue was how the court should correct sentences and orders imposed outside the sentencing court’s statutory powers.

1. Disposition. The court granted the necessary extensions of time and permissions to appeal. It allowed the appeals to the extent required to quash unlawful convictions, sentences and ancillary orders, while preserving any lawful sentence or total that remained appropriate.
2. Cain. The maximum sentence for the relevant indecency offences was that in force when they were committed. Section 52 of the Crime (Sentences) Act 1997 did not apply its increased maximum to pre-commencement offending. The excessive sentences were quashed and replaced with concurrent sentences of 18 months. The conviction on count 10 was quashed because, before section 39 of the Criminal Justice and Courts Service Act 2000 raised the age from 14 to 16, the complainant did not fall within the alleged offence. The total sentence of 13 years was nevertheless appropriate for the sustained and grave abuse and the appeal against that total was dismissed.
3. Summary offences committed for sentence. Where the Crown Court dealt with summary offences under sections 6 and 7 of the Criminal Courts (Sentencing) Act 2000, it could not impose greater individual or aggregate terms than the magistrates could have imposed. The court accordingly reduced Benton’s aggregate sentence to 18 months, reduced Liversidge’s total to 34 months by correcting unlawful consecutive terms, and made Hodson’s summary-offence terms concurrent.
4. Ancillary consequences. A duplicate extended-driving-test requirement was unlawful. Hodson’s order that the new sentences run consecutively to his existing sentence contravened section 265 of the Criminal Justice Act 2003, and he was entitled under section 240 to 41 days’ remand credit. His county-wide Anti-Social Behaviour Order was wrong in principle because offending in Sussex alone did not justify excluding him from the county.
5. Advocates’ duties. The court also reaffirmed, as important practice guidance, that advocates for both sides must assist on statutory sentencing powers and relevant guideline material. It referred to Attorney General’s Reference No 52 of 2003 [2003] EWCA Crim 3731 and R v Pepper and Others [2005] EWCA Crim 1181.

• Court of Appeal (Criminal Division): The court granted the necessary permissions and allowed the appeals to correct unlawful sentences and orders. It quashed Cain’s conviction on count 10, but dismissed his challenge to the 13-year total sentence.
• Crown Court and magistrates’ courts: Cain was convicted and sentenced at Leeds Crown Court. Benton, Liversidge and Hodson pleaded guilty in magistrates’ courts and were committed to the Crown Court for sentence at Birmingham, Leeds and Lewes respectively.