Hutchison, R v

On a sentencing appeal, the court will not intervene merely to correct an incidental factual observation by the sentencing judge where that observation did not affect the sentence. The material question is the factual basis on which the sentence was actually imposed and whether the sentence was excessive. A disputed allegation that was immaterial to sentence did not require appellate alteration where the judge had sentenced on the basis that the offender genuinely believed it.

The applicant pleaded guilty, on the fourth day of his trial, to wounding with intent after stabbing a Police Community Support Officer with a knife. He received imprisonment for public protection with a minimum term of three years and three months, less time spent on remand.

He did not challenge the indeterminate sentence. His renewed application, after refusal by a single judge, challenged the minimum term. He contended that the sentencing judge should not have said he was sure that the officer had not made an insulting remark about the applicant’s mother, because no Newton hearing had occurred.

The central issue was whether that unnecessary observation affected the sentence or required the Court of Appeal to quash and reimpose an identical sentence on a corrected factual basis.

1. The renewed application for leave to appeal against sentence was refused. The sentencing judge had sentenced the applicant on the basis that he genuinely believed the alleged insulting remark had been made. That finding, rather than whether the remark was in fact made, was the relevant factual basis for sentence.

2. The judge should not have stated that he was sure the officer had not made the remark. He had declined to hear evidence on the issue and was not in a position to make that finding. However, the observation was unnecessary and did not affect the sentence imposed.

3. The Court of Appeal’s function is not to review incidental remarks in sentencing observations which have had no effect on sentence. The applicant therefore suffered no relevant prejudice, including in relation to any future consideration by the Parole Board, because the sentencing judge had accepted his genuine belief.

4. There was no basis for finding the minimum term excessive. A starting point of seven years for the notional determinate sentence was within the applicable sentencing range for a premeditated wounding involving a weapon acquired and carried to the scene. The perceived provocation was mitigating, but the attack on a Community Support Officer and the applicant’s record were aggravating. The six-month allowance for the very late guilty plea was not open to proper complaint.

• Court of Appeal (Criminal Division): The renewed application for leave to appeal against sentence was refused in [2008] EWCA Crim 1379.
• Single judge: The applicant’s application for leave to appeal against sentence was refused.
• Sentencing court: On 1 February 2008 the applicant was sentenced to imprisonment for public protection with a minimum term of three years and three months, less time spent on remand.