Bath, R v

Where a defendant has pleaded guilty to lesser alternative counts but is convicted of the principal counts, the appropriate disposal of the lesser counts is for the guilty pleas to lie on the court file. The court must not impose a sentence of no separate penalty on those lesser alternatives. An appellate court may correct that technical sentencing defect while leaving the lawful sentence on the principal counts undisturbed.

The appellant pleaded guilty to two counts under section 20 of the Offences Against the Person Act 1861, which were lesser alternatives to two counts under section 18. The Crown did not accept the pleas. Following trial, he was convicted of the section 18 counts and received an extended sentence under section 226A of the Criminal Justice Act 2003.

He appealed against sentence. Permission to challenge the dangerousness finding was refused and that ground was not renewed. Leave was granted, under the procedure described in R v Hyde [2016] EWCA Crim 1031, to correct the technical error of recording no separate penalty on the lesser alternative counts.

1. The appeal was allowed on ground 1 only. The court amended the record to remove the purported sentences of no separate penalty on counts 3 and 5. In every other respect, including the extended sentence imposed on counts 2 and 4, the sentence remained undisturbed.
2. The appellant had pleaded guilty to counts under section 20 of the Offences Against the Person Act 1861 as lesser alternatives to the section 18 counts. The Crown did not accept those pleas and the appellant was subsequently convicted at trial of the principal section 18 counts.
3. In those circumstances, no sentence should have been imposed on the lesser alternative counts. A recorded disposal of no separate penalty was itself a sentencing order and was therefore technically wrong. The proper course was simply to leave the guilty pleas on those counts to lie on the court file.
4. The court used the procedural route described in R v Hyde [2016] EWCA Crim 1031 to correct that defect on a paper, non-counsel application. The correction did not reopen the unrenewed challenge to dangerousness or affect the sentence imposed under section 226A of the Criminal Justice Act 2003.

• Court of Appeal (Criminal Division): Allowed the appeal on the limited technical-sentencing ground. The court removed the entries of no separate penalty and directed that the guilty pleas to the lesser alternative counts lie on the court file.
• Trial and sentencing proceedings: The appellant was convicted on 19 September 2016 of two section 18 counts under the Offences Against the Person Act 1861. On 23 December 2016, he received an extended sentence under section 226A of the Criminal Justice Act 2003.