Cox, R. v (Rev 1)

A sentencing judge may depart from an initially applicable guideline range where the facts and the offender’s record justify it. The appellate court will not interfere where the judge has explained the aggravating features, assessed totality, and imposed a sentence within the proper range.

A qualifying-curfew deduction must be specified when sentence is pronounced. An agreed later correction may be dealt with administratively, although the deduction should ordinarily be pronounced in open court. A variation increasing sentence, including a driving disqualification under the totting-up procedure, must not be made in the defendant’s absence under the Criminal Procedure Rules. Procedural non-compliance does not of itself make the varied sentence a nullity.

The appellant pleaded guilty to possession of cannabis, driving without insurance and without a licence, and criminal damage. Following a Crown Court trial at Aylesbury, he was convicted of assaulting a constable with intent to resist arrest and was sentenced to seven months’ imprisonment. Six penalty points were endorsed on his driving licence.

After sentence, the Recorder specified an agreed qualifying-curfew credit of 18 days and, under the totting-up procedure, imposed a ten-month driving disqualification. Both alterations were made administratively on the papers.

The appellant appealed the custodial term as excessive. The court also considered the proper procedure for later sentence variations, particularly a variation which increases the overall sentence.

1. The appeal against the seven-month custodial sentence was dismissed. The Recorder had conducted the trial and was entitled to characterise the sustained attack on a lone police officer as ferocious. She gave adequate reasons for departing from the initial category 2 guideline range. Those reasons included the violence of the struggle, the circumstances in which it occurred, and the appellant’s antecedent history. The sentence also had to reflect the totality of the offending, including the criminal damage and driving matters. It was for the Recorder to decide whether a pre-sentence report would assist.

2. Under Criminal Justice Act 2003, section 240A(8), the sentencing court must specify the number of qualifying-curfew days to be credited. The correct figure should be obtained and announced at the sentencing hearing, especially where a short custodial term is imposed. Where the figure is later agreed, it may be dealt with on the papers, but good practice is for the credited period to be pronounced in open court. Another judge may do so for that limited purpose if the sentencing judge approves and is unavailable.

3. The older general requirement that every sentence adjustment be made in open court is qualified in Crown Court proceedings by Criminal Procedure Rule 28.4. The rule permits some variations with or without a hearing. However, Rule 28.4(4) prevents a variation in the defendant’s absence where it would increase the sentence. A totting-up disqualification is serious and may increase the overall sentence. It should therefore be argued and decided in open court with the defendant able to attend, including by video link if necessary.

4. Open justice independently supports that conclusion. Administrative convenience should not routinely displace a public hearing. Nevertheless, the improperly paper-based disqualification order was valid rather than a nullity. The appellant accepted that the written process had aired his arguments and that the same result would have followed at a public hearing. He did not challenge the disqualification, which therefore stood.

• Court of Appeal (Criminal Division): dismissed the appeal against sentence and held that the later driving disqualification remained valid: [2019] EWCA Crim 71.

• Crown Court at Aylesbury: convicted the appellant of assault with intent to resist arrest after trial and imposed seven months’ imprisonment. The Recorder later specified qualifying-curfew credit and imposed a ten-month totting-up disqualification administratively.

• Magistrates’ court: the appellant pleaded guilty to possession of cannabis and driving offences.