Abbott & Ors v R.

For victim-surcharge purposes, consecutive or concurrent custodial terms for one or more offences comprise a single disposal. The surcharge is calculated by reference to the aggregate custodial term. The same aggregate approach applies to multiple fines.

Where different types of disposal are imposed, the court must calculate the surcharge applicable to each aggregate disposal and impose the highest amount. A surcharge duty under Criminal Justice Act 2003 section 161A is discharged when the offender is first sentenced for an offence. Resentencing for breach, including activation of a suspended sentence, does not attract a second surcharge. If new offences are sentenced at the same hearing, any surcharge is calculated by reference to those new offences alone.

These were conjoined appeals against sentences imposed in the Crown Courts at Manchester, Taunton and Ipswich. Harrison challenged a sentence for cannabis production and activation of a suspended sentence. Hawker challenged the full activation of a suspended sentence following breaches of a Sexual Harm Prevention Order and notification requirements. Abbott challenged consecutive sentences for public-order, assault and breach-of-non-molestation-order offences.

The court invited the Secretary of State for Justice to intervene on the separate question of the correct calculation of victim surcharges. The common issues concerned multiple custodial or financial disposals, mixed disposals, and the effect of activating suspended sentences or dealing with breaches under Criminal Justice Act 2003 section 161A.

1. The conjoined appeals were allowed in part. Harrison’s sentence was quashed and replaced with 21 months’ imprisonment. Hawker’s activated suspended sentence was reduced by six months, producing a total of two and a half years’ imprisonment. Abbott’s appeal against sentence was dismissed. Harrison’s surcharge was reduced from £170 to £140; Hawker’s and Abbott’s surcharge orders remained unchanged.

2. In Harrison’s case, the judge had not sentenced on the accepted basis of plea. A court intending to depart from the guideline range clearly indicated by that basis should explain its approach, and it could not disregard the basis without a Newton hearing. A previous similar conviction and the breach of a suspended sentence could nevertheless aggravate the new offending even if the suspended sentence was activated. Activation was required unless unjust in all the circumstances, with totality remaining material.

3. Under Criminal Justice Act 2003 section 161A and the Criminal Justice Act 2003 (Surcharge) Order 2012, a court dealing with one or more offences by a single type of disposal must use the aggregate amount of that disposal. Thus, consecutive custodial terms are one imprisonment disposal, and multiple fines are aggregated. The court followed R v Phelan-Sykes [2015] EWCA Crim 1094 as to custody and held that there was no principled distinction for fines.

4. For mixed disposals, the court must calculate the surcharge applicable to each aggregate type of disposal and impose the higher sum. This applies whether the disposals concern one offence or different offences.

5. The statutory duty is discharged on first sentencing. It creates neither a duty nor a power to impose a second surcharge when the offender is later dealt with for breach. The court followed R v George [2015] EWCA Crim 1096 and declined to follow the contrary implication of R v Bailey; R v Kirk [2013] EWCA Crim 1551. Where new offences are sentenced alongside activation or breach proceedings, the new surcharge is calculated only by reference to the new offences. The applicable charging regime is determined by the earliest offence being dealt with, including the original offence underlying a breached order.

• Court of Appeal (Criminal Division): In [2020] EWCA Crim 516, the court allowed the Harrison and Hawker appeals to the stated extent, dismissed Abbott’s appeal, and determined the surcharge issues for all three cases.
• Crown Courts: Sentences were imposed respectively at Manchester, Taunton and Ipswich Crown Courts following convictions or committals for sentence from the magistrates’ courts.