Lawlor, R. v

A sentence of detention in a young offender institution exceeding 12 months cannot be suspended under section 189 of the Criminal Justice Act 2003. Where such an unlawful sentence has been imposed, the Court of Appeal may quash it and substitute a lawful sentence. Its substitution is constrained by section 11(3) of the Criminal Appeal Act 1968: the appellant must not be dealt with more severely in the overall effect of the sentence than at first instance.

The applicant pleaded guilty in the Crown Court at Birmingham to inflicting grievous bodily harm after an unprovoked punch caused the complainant's jaw to be broken on both sides. A recorder had indicated that a non-custodial sentence might be imposed if the risk of reconviction was low.

Another recorder sentenced the applicant to 18 months' detention in a young offender institution, suspended for two years, with 200 hours' unpaid work, costs and compensation. Following a later arrest, counsel identified that the suspended sentence exceeded the statutory maximum. The applicant sought an extension of time and leave to appeal against sentence.

The central issues were whether the sentence was unlawful and what lawful substitute the appellate court could impose.

Decision

1. The court granted an extension of time and leave to appeal, allowed the appeal, quashed the sentence and substituted a sentence of 12 months' detention in a young offender institution, suspended for two years.
2. The original sentence of 18 months' detention, suspended for two years, was unlawful. Section 189 of the Criminal Justice Act 2003 gave the sentencing court no power to suspend a sentence exceeding 12 months. The seriousness of the assault, the guilty plea and the assessment of risk did not affect that statutory limit.
3. The Court of Appeal's powers were constrained by section 11(3) of the Criminal Appeal Act 1968. It could not deal with the appellant more severely in the overall effect of the sentence than the Crown Court had done. A 12-month suspended sentence was therefore substituted for the unlawful 18-month suspended sentence.
4. The court also gave obiter sentencing guidance. When adjourning for a pre-sentence report, a court should not normally give a positive indication that it will impose a non-custodial sentence. Although such a disposal must be in contemplation before such an adjournment, a positive indication may later be treated as a promise and improperly constrain sentencing.

• Court of Appeal (Criminal Division) — On 25 February 2008, in [2008] EWCA Crim 474, granted an extension of time and leave to appeal, allowed the appeal against sentence, quashed the unlawful sentence and substituted a 12-month suspended sentence.
• Crown Court at Birmingham — On 30 March 2007, sentenced the applicant for inflicting grievous bodily harm to 18 months' detention in a young offender institution, suspended for two years, with unpaid work, costs and compensation.