Qayum, R. v

A Crown Court’s sentencing power following committal by magistrates depends upon the statutory basis of the committal. A committal under section 3 of the Powers of Criminal Courts (Sentencing) Act 2000 permits sentence as on conviction on indictment. A committal under section 6 instead confines the Crown Court to the sentencing powers of the magistrates’ court for that offence.

Where an unlawful sentence is corrected on appeal, substituted individual sentences must not make the offender’s overall position more severe. Sentencing for possession of a bladed article may properly be consecutive where it constitutes separate criminality and materially aggravates associated offending. Guidance concerning knives and offensive weapons may also apply to a makeshift weapon capable of immediate use as an offensive weapon.

The appellant pleaded guilty before magistrates to shop theft and possession of a bladed article after stealing electrical goods with another person and threatening a security guard with kitchen scissors while escaping. He was committed to the Crown Court for sentence. The committal certificate used section 3 of the Powers of Criminal Courts (Sentencing) Act 2000 for the bladed-article offence but section 6 for theft.

At Reading Crown Court on 14 June 2010, he received two years’ imprisonment for theft and nine months’ imprisonment consecutive for possessing the bladed article, making two years and nine months. The Registrar referred the application for leave because the theft sentence appeared unlawful. The central issues were the effect of the different committal powers and the appropriate substituted overall sentence.

1. Appeal allowed in part. The two-year sentence for theft was unlawful. The appellant had been committed for that offence under section 6 of the Powers of Criminal Courts (Sentencing) Act 2000. By section 7(1), the Crown Court could deal with him only as the magistrates could have done. Its maximum sentence for the theft was therefore six months’ imprisonment.

2. The section 3 committal for possession of a bladed article had a different effect. It permitted the Crown Court to sentence as if the appellant had been convicted on indictment, up to the statutory maximum. The erroneous reference to section 6 for the breach of the suspended sentence order was immaterial. The Crown Court independently had power under Schedule 12 to the Criminal Justice Act 2003 to deal with the breach.

3. Under section 11(3) of the Criminal Appeal Act 1968, the substituted sentences could not make the appellant’s overall position more severe than it had been below. The original total was also manifestly excessive. The theft, although planned and aggravated by value, group offending and the scissors, was substantially less serious than the offending considered in R v O'Shea [2010] EWCA Crim 377.

4. A consecutive sentence for the bladed article was justified. It was separate criminality and a serious aggravating feature. The guidance in R v Povey [2009] 1 Cr App R (S) 42 applied equally to kitchen scissors, which could be produced and used as an offensive weapon in the moment.

5. The court quashed the two-year theft sentence and substituted six months’ imprisonment. It quashed the nine-month consecutive sentence for the bladed article and substituted 12 months’ imprisonment consecutive. The resulting total was 18 months’ imprisonment. The suspended-sentence and drug orders remained unaltered.

• Court of Appeal (Criminal Division): Leave was granted and the appeal was allowed to the extent of quashing the unlawful theft sentence and varying the total sentence to 18 months’ imprisonment: [2010] EWCA Crim 2237.

• Crown Court at Reading: On 14 June 2010, imposed two years’ imprisonment for theft and nine months’ imprisonment consecutive for possession of a bladed article, making two years and nine months.

• East Berkshire Magistrates’ Court: On 7 April 2010, accepted guilty pleas and committed the appellant to the Crown Court for sentence.