Seed & Anor, R. v

A custodial sentence may be imposed only where the statutory custodial threshold is crossed. Even then, the court must consider whether mitigation, including a guilty plea and personal circumstances, makes a non-custodial sentence appropriate. Any custody must be for the shortest term commensurate with seriousness. Prison overcrowding is relevant because it makes the regime more punitive.

Under the Criminal Justice Act 2003, sentencing courts should consider whether punishment and rehabilitation can properly be achieved by a fine or community sentence. Bigamy does not inevitably require custody. The appropriate disposal depends on the circumstances, especially any deception and resulting injury. A serious, deliberate failure to surrender to bail may nevertheless make an overall custodial disposal appropriate.

These were conjoined appeals against sentence.

Trigger Seed pleaded guilty at Chelmsford Crown Court to assault occasioning actual bodily harm. The prosecution accepted a basis of plea that he threw wine and unintentionally released the glass which caused the complainant’s injury. He received six months’ imprisonment.

Philip Stark pleaded guilty to bigamy and was committed by North East Hampshire Magistrates’ Court for sentence. At Winchester Crown Court he received six months’ imprisonment for bigamy and a consecutive three months for failing to surrender to bail. He had left the jurisdiction deliberately after fearing a substantial sentence, but later returned for his son’s funeral.

The central issues were whether custody was justified for each substantive offence and what overall sentence properly reflected Stark’s bigamy and bail offending.

Both appeals against sentence were allowed.

1. Section 152(2) of the Criminal Justice Act 2003 requires the court first to decide whether the seriousness of the offence crosses the custodial threshold. Crossing that threshold does not compel custody. A guilty plea or personal mitigation may make a fine or community sentence appropriate. Under section 153, any custodial term must be the shortest commensurate with seriousness. Prison overcrowding is relevant when fixing its length because it increases the punitive character of imprisonment.

2. Seed’s sentence had been imposed as if he had deliberately thrown a glass at the complainant. That was inconsistent with the accepted basis of plea: he had thrown wine and the glass unintentionally left his hand. The accepted basis transformed the offence into a trivial one which did not warrant custody. The six-month sentence was quashed and replaced with seven days’ imprisonment.

3. Bigamy is not an offence which inevitably attracts immediate custody. Applying the approach in R v Crowhurst (unreported), the seriousness depends on the particular circumstances, including any injurious deception. Stark’s deception of Marina was significant but the case did not involve a tangled web of deception, immigration evasion, or serious injury. Bigamy alone did not demand custody; a substantial fine would probably have been suitable.

4. Stark’s deliberate flight to the United States to evade sentence was, however, a serious bail offence. In the unusual combined circumstances, custody was appropriate to reflect the overall criminality, although the court declined to lay down general principle for bail sentencing. Having regard also to his bereavement, arrest at his son’s funeral, time served and overcrowded prison conditions, the six-month bigamy sentence was quashed and replaced by three months concurrent with the three-month bail sentence. This resulted in his immediate release.

• Court of Appeal (Criminal Division): Leave was granted to Seed and Stark’s appeal proceeded by leave of the single judge. The court quashed Seed’s six-month sentence and substituted seven days. It quashed Stark’s six-month bigamy sentence and substituted three months concurrent with the three-month sentence for failing to surrender to bail.
• Crown Court: At Chelmsford, Seed was sentenced on 8 January 2007 to six months’ imprisonment for assault occasioning actual bodily harm. At Winchester, Stark was sentenced on 8 December 2006 to six months’ imprisonment for bigamy and three months consecutively for failing to surrender to bail.
• Magistrates’ Court: Stark pleaded guilty at North East Hampshire Magistrates’ Court on 17 March 2005 and was committed to the Crown Court for sentence.