Morgan, R. v

An error in recording the statutory basis for a committal does not invalidate it. The court must identify the substantive decision which the magistrates actually made.

Where a breach of a Crown Court suspended sentence and a further either-way offence are committed together, the statutory route may limit the Crown Court’s sentencing powers for the further offence. A magistrates’ court should use the committal-for-sentence route where the statutory seriousness test is met and full Crown Court sentencing powers are required.

A real and unjustified disparity between sentences imposed on equally culpable offenders may make a sentence excessive.

The applicant pleaded guilty in the Yeovil Magistrates’ Court to theft while subject to a suspended sentence imposed by the Exeter Crown Court for burglary and possession of a Class A drug. The theft admitted the breach of that suspended sentence.

Following committal, the Exeter Crown Court imposed nine months’ imprisonment for theft and activated the six-month suspended sentence consecutively. The magistrates’ record incorrectly identified paragraph 8(6) of Schedule 12 to the Criminal Justice Act 2003 as the basis for committal.

The applicant appealed against sentence. The issues were the true statutory basis and sentencing effect of the committal, and whether the theft sentence was excessive when a co-offender with an at least equal role had received a community order.

1. Appeal allowed against sentence. The court quashed the nine-month sentence for theft and substituted four months’ imprisonment. That term was to run consecutively to the six-month sentence for breach, producing a total of ten months’ imprisonment.

2. The erroneous entry of paragraph 8(6) of Schedule 12 to the Criminal Justice Act 2003 did not invalidate the committal. Applying the established approach, the court examined the magistrates’ substantive decision and held that the breach had in truth been committed under section 6 of the Powers of Criminal Courts (Sentencing) Act 2000.

3. The breach and the further theft were separate matters, although good sentencing practice normally favours their being dealt with together. Section 7(1) ordinarily confines the Crown Court, after a section 6 committal, to the sentencing powers of the magistrates. Section 7(2) clearly removes that restriction for the suspended-sentence breach. The court considered that it might not remove the restriction for the further substantive offence, but stated that the point required fuller written submissions before a final answer could be reached.

4. The court gave guidance that, where the seriousness test in section 3(2) of the 2000 Act is met, the substantive offence should be committed under section 3 rather than section 6. That route gives the Crown Court full sentencing powers.

5. In any event, the nine-month theft sentence was excessive on its merits. The applicant was no more culpable than his co-offender, whose case had been dealt with by a community order. The disparity was real, and a four-month term properly reflected both the guilty plea and the starting point of the magistrates’ sentencing powers.

• Court of Appeal (Criminal Division) — Allowed the appeal against sentence and substituted four months’ imprisonment for the nine-month theft sentence: [2012] EWCA Crim 1939.

• Exeter Crown Court — On 4 May 2012, imposed nine months’ imprisonment for theft and six months’ imprisonment for breach of the suspended sentence, consecutively.

• Yeovil Magistrates’ Court — On 2 April 2012, accepted the applicant’s guilty plea to theft and committed the matters to the Crown Court.