Holden, R. v

A mandatory victim surcharge may be imposed only where every offence for which sentence is passed was committed after 1 October 2012. If any offence pre-dated that date, the earlier regime applies and a surcharge is available only where the sentence includes a fine.

A court cannot remedy an unlawfully imposed surcharge by fixing a custodial default term. Powers of Criminal Courts (Sentencing) Act 2000, section 139 concerns fines and does not extend to victim surcharges. The available statutory power is to allow time to pay.

The appellant received a total of 20 months’ imprisonment for five burglaries in the Crown Court at Birmingham. The Recorder also imposed an £80 victim surcharge and purported to remit it to one day’s imprisonment, which was deemed served.

Permission to appeal the burglary sentences was refused and was not renewed. Leave was granted only in relation to the surcharge. One burglary had been committed on 1 September 2012. The central issue was whether the surcharge, and the purported custodial default term, were lawful.

1. The appeal was allowed to the limited extent sought. The victim surcharge was quashed. Although the imprisonment sentences were not before the court, the surcharge could not stand.
2. The mandatory surcharge regime applied only if every offence for which the appellant was sentenced had been committed after 1 October 2012. One burglary pre-dated that date. The earlier regime therefore governed, under which a surcharge could be imposed only if the sentence included a fine. As there was no fine, no surcharge could be imposed. This applied the principles stated in R v David Stone [2013] EWCA Crim 723.
3. Further, and stated for completeness, the Recorder could not lawfully deem the surcharge served by one day’s imprisonment. Section 139 of the Powers of Criminal Courts (Sentencing) Act 2000 permits a default term for a fine but had not been extended to victim surcharges. The relevant statutory power was to allow time to pay under section 141, as amended by paragraph 13 of Schedule 9 to the Administration of Justice Act 1970. The court applied R v John Burke [2010] EWCA Crim 1092 on that point.

• Court of Appeal (Criminal Division): Leave was granted solely on the victim-surcharge issue. The appeal was allowed to that extent and the surcharge was quashed.
• Crown Court at Birmingham: On 18 April 2013 the appellant was sentenced to 20 months’ imprisonment for five burglaries. An £80 victim surcharge was imposed and purportedly remitted to one day’s imprisonment deemed served.