Burke, R v

Where a magistrates’ court had jurisdiction to commit an offender to the Crown Court, a clerical omission or inaccuracy in the memorandum of committal does not invalidate the committal. The decisive question is the statutory power the magistrates actually exercised, not the power recorded in the document.

For low-value shoplifting, the conditions in section 22A(3) of the Magistrates’ Courts Act 1980 are cumulative. Where two or more such offences are charged on the same occasion, their values must be aggregated under section 22A(4)(b). A custodial sentence for a persistent offender may properly be substantial, but it must remain proportionate and be the shortest term commensurate with the seriousness of the offending.

The applicant pleaded guilty to 13 shop thefts, two breaches of a Criminal Behaviour Order and a failure to surrender to bail. The magistrates committed him to the Crown Court for sentence. The Crown Court imposed concurrent sentences of 30 months’ imprisonment for each theft, producing a total of 30 months.

On an application to appeal sentence, the Registrar identified that some sentences might exceed the Crown Court’s powers because the memoranda of committal recorded a mixture of committals under sections 3 and 6 of the Powers of Criminal Courts (Sentencing) Act 2000. The applicant also contended that the total sentence was manifestly excessive. The central issues were the effect of defective memoranda, the classification of the thefts under section 22A of the Magistrates’ Courts Act 1980, and the proportionate aggregate sentence.

1. Appeal allowed as to sentence. The court quashed the 30-month sentences and substituted concurrent terms producing a total sentence of two years’ imprisonment.

2. The defects in the memoranda did not prevent the Crown Court from giving effect to the committing court’s evident intention. Applying Ayham [2012] 1 Cr.App.R 27, the question was whether the magistrates had jurisdiction and what statutory power they actually exercised, rather than the inaccurate power recorded in the memoranda.

3. The criteria for low-value shoplifting in section 22A(3) of the Magistrates’ Courts Act 1980 are cumulative. Section 22A(4)(b) required aggregation of the value of offences charged on the same occasion. Accordingly, the magistrates could not treat ten thefts as summary-only offences; defective references to section 6 instead of section 3 of the Powers of Criminal Courts (Sentencing) Act 2000 did not limit the Crown Court’s powers for them. Three thefts were properly committed under section 6, so the 30-month sentences on those counts were unlawful and were quashed.

4. The offender’s persistent and repeated thefts, committed on bail and licence, justified immediate custody and a substantial aggregate term. The definitive theft guideline and Chamberlain [2017] 1 Cr.App.R (S) 46 permitted a significant custodial sentence for persistent low-level offending where other sentences had been exhausted. However, the thefts were unsophisticated and non-violent. By section 153(2) of the Criminal Justice Act 2003, custody had to be the shortest term commensurate with seriousness. A total of 30 months, equivalent to 45 months after trial, was manifestly excessive. The proper sentence after trial was three years and, after full credit for guilty pleas, two years.

• Court of Appeal (Criminal Division): Leave was granted and the sentence appeal was allowed. The total term was reduced from 30 months to two years’ imprisonment.

• Crown Court at Southwark: On 12 January 2017, the applicant received concurrent sentences of 30 months’ imprisonment for the thefts.

• Central London Magistrates’ Court: On 17 November 2016, the applicant was committed to the Crown Court for sentence under memoranda referring to sections 3 and 6 of the Powers of Criminal Courts (Sentencing) Act 2000.