Harvey, R. v

For the aggregation provision governing low-value shoplifting, being charged on the same occasion means appearing before a magistrates’ court to answer the charges. The appearance continues until allocation. This construction prevents the mode by which proceedings are begun from determining whether offences may be aggregated under Magistrates Courts Act 1980, section 22A.

A committal for sentence is not invalid merely because magistrates mistakenly identify the statutory power used, provided they possessed jurisdiction under the correct provision. The Crown Court’s sentencing powers nevertheless remain those conferred by that correct provision. A substantial sentence for persistent and aggravated shoplifting must also comply with totality.

The appellant pleaded guilty in the magistrates’ court to fraud, fourteen thefts involving shoplifting, and driving offences. The matters were committed to the Crown Court at Gloucester for sentence. On 20 August 2019, the Crown Court imposed a total of 45 months’ imprisonment.

On the sentence appeal, the court had to decide whether shoplifting offences charged in separate postal requisitions could be aggregated when the appellant appeared before the magistrates’ court on the same occasion. That question determined whether they were summary-only low-value shoplifting offences and, consequently, the Crown Court’s sentencing powers. The appellant also contended that the total sentence was manifestly excessive.

1. Appeal allowed. The total sentence of 45 months’ imprisonment was manifestly excessive. A total term of 30 months was substituted.

2. Section 22A(4)(b) of the Magistrates Courts Act 1980 requires aggregation where an accused appears before the magistrates’ court to answer two or more low-value shoplifting charges. It does not turn on whether the police charged the offences at the same time or placed them in the same postal requisition. An accused continues to appear in answer to the charge until allocation. This gives the phrase the same meaning as in section 22(11) and prevents the commencement procedure from affecting allocation and sentencing powers.

3. On that construction, all but the Aldi theft were either-way offences, either by their individual value or aggregation. Their committal under section 3 of the Powers of the Criminal Courts (Sentencing) Act 2000 was lawful.

4. The Aldi theft and driving offences were summary-only. The magistrates had mistakenly referred to section 3, but had jurisdiction to commit them under section 6. Applying R v Ayhan [2012] 2 Cr App R (S) 37, the mistake did not invalidate the committal. It was treated as a section 6 committal. Section 7 therefore confined the Crown Court to magistrates’ sentencing powers, making the nine-month sentence for the Aldi theft unlawful. It was replaced with four months concurrent.

5. Although the persistence, planning, value and aggravating features justified a substantial sentence outside the shop-theft guideline, the sentencing judge adopted too high a pre-plea starting point and gave insufficient weight to totality. The court quashed the 15-month sentence for the H Samuel theft and substituted 30 months. All terms were ordered to run concurrently under section 11(3) of the Criminal Appeals Act 1968.

• Court of Appeal (Criminal Division): Granted leave and allowed the sentence appeal, varying the total sentence to 30 months’ imprisonment: [2020] EWCA Crim 354.
• Crown Court at Gloucester: On 20 August 2019, imposed a total sentence of 45 months’ imprisonment following committal for sentence.
• Cheltenham Magistrates’ Court: Accepted guilty pleas and committed the matters to the Crown Court for sentence.