Hussain, R v

Where an offender appears before the Crown Court under the referral provisions in Schedule 2 to the Criminal Justice and Immigration Act 2008, paragraph 19(6) confines the Crown Court’s sentencing powers for the further offence to the powers of the convicting magistrates’ court. A sentence exceeding that limit is unlawful and must be quashed.

Following revocation of a youth rehabilitation order, paragraph 19(3) permits the Crown Court to sentence for the original offence. That sentence may run consecutively to sentences for separate later offences, subject to the ordinary principle of totality.

The applicant was convicted at Stratford Magistrates’ Court of possessing cocaine and heroin with intent to supply. As he was then subject to a youth rehabilitation order for violent disorder, he was committed to Snaresbrook Crown Court for sentence under Schedule 2 to the Criminal Justice and Immigration Act 2008.

The Recorder imposed concurrent sentences of 33 months’ detention in a young offender institution for the drug offences. He revoked the youth rehabilitation order and imposed a concurrent six-month sentence for violent disorder. The applicant challenged the drug sentences as excessive. The Court of Appeal granted leave because their legality depended on the restricted sentencing powers conferred by Schedule 2.

1. Appeal allowed. The concurrent 33-month sentences for the drug offences were unlawful and were quashed.

2. Under paragraph 19(6) of Schedule 2 to the Criminal Justice and Immigration Act 2008, an offender who appears in the Crown Court by virtue of paragraph 18(11) may be dealt with for the further offences only as the convicting court could have dealt with him. The relevant convicting court was Stratford Magistrates’ Court. Its maximum available sentences were six months’ detention in a young offender institution for each drug offence. The Court therefore substituted two consecutive six-month sentences.

3. Upon revoking the youth rehabilitation order, paragraph 19(3) permitted the Crown Court to deal with the violent-disorder offence as it could have done had the offender been before it for that offence. Applying Nicholas Whitlock [1992] 13 Cr App R (S) 157, the Court held that the six-month sentence for that separate offence could run consecutively to the sentences for the later drug offences.

4. Totality did not require concurrency. The violent disorder was wholly separate from the drug offending, and the Recorder had indicated that a consecutive sentence would ordinarily have been appropriate. The substituted sentences were therefore 12 months’ detention for the drug offences and six months’ detention consecutively for violent disorder. The forfeiture and destruction orders remained in force.

• Court of Appeal (Criminal Division): In [2012] EWCA Crim 3039, the court granted leave, allowed the appeal, quashed the unlawful drug sentences, and substituted consecutive sentences.
• Crown Court at Snaresbrook: On 29 June 2012, the Recorder imposed concurrent 33-month sentences for the drug offences and a concurrent six-month sentence after revoking the youth rehabilitation order.
• Stratford Magistrates’ Court: On 30 May 2012, the applicant was convicted of the two drug offences and committed to the Crown Court for sentence under Schedule 2 to the Criminal Justice and Immigration Act 2008.