Moore (aka Newton), R v

Where summary-only offences under Criminal Justice Act 1988 section 39 are included in an indictment, the Crown Court may try them but may sentence only within a magistrates’ court’s powers. A consecutive aggregate exceeding the applicable magistrates’ maximum is unlawful and must be quashed.

In domestic-violence sentencing, a victim’s wish to continue the relationship does not determine sentence. It may justify mitigation only where the wish is genuine and the court is confident that it will not expose the victim to a real risk of further violence. Courts should exercise real care before reducing sentence on that basis.

The appellant pleaded guilty at Preston Crown Court to four common-assault offences contrary to section 39 of the Criminal Justice Act 1988. The Recorder imposed four consecutive three-month sentences, totalling 12 months, suspended for 18 months.

In a late non-counsel application, the appellant sought leave to appeal sentence. The central issue was whether the Crown Court could impose that aggregate sentence where the summary-only offences had appeared on an indictment containing either-way counts, and, if not, what lawful substitute sentence should be imposed.

1. The court granted an extension of 342 days for leave to appeal. An unlawful sentence required correction, and the principles in R v Thorsby [2015] EWCA Crim. 1 supported granting the necessary extension.

2. The appeal was allowed to the extent necessary to correct sentence. Although section 39 offences could properly be included in the indictment under section 40 of the Criminal Justice Act 1988, section 40(2) confined the Crown Court to sentencing powers available to a magistrates’ court. Under section 133 of the Magistrates’ Courts Act 1980, the applicable aggregate maximum was six months. The original 12-month consecutive sentence was therefore unlawful and was quashed.

3. The offences cumulatively passed the custody threshold. Repeated bullying violence within an intimate relationship was serious even without serious physical injury. The court stressed that the victim’s wish to resume or continue a relationship should not ordinarily affect sentence. Any mitigation on that basis required confidence that the wish was genuine and would not expose the victim to a real risk of further violence. The guidance required real care and should not encourage leniency too readily.

4. The custodial term had to be fixed before considering suspension. Allowing modest credit against the total sentence for the guilty pleas, the proper sentence was four months’ imprisonment on each count, concurrent, suspended for 18 months from 28 February 2014.

5. Although each substituted term exceeded the original individual three-month term, the appellant was not more severely dealt with when the case was viewed as a whole. The court had jurisdiction to make that substitution. Lady Justice Sharp added concern about the charging of domestic-violence offences and considered that the issue should be examined at the highest level.

• Court of Appeal (Criminal Division): allowed the sentence appeal and substituted concurrent four-month sentences, suspended for 18 months: [2015] EWCA Crim 1621.

• Crown Court at Preston: imposed four consecutive three-month sentences for common assault, totalling 12 months and suspended for 18 months. The sentence was unlawful.