R v Ruben Matthew Marks

Where a defendant pleads guilty to a lesser of two alternative offences but is later convicted of the more serious offence arising from the same conduct, the lesser count should lie on the file. No separate penalty should not be imposed. A guilty plea alone is not a conviction until sentence is passed, whereas a sentence of no separate penalty creates an additional conviction.

When correcting that error, the appellate court may preserve a driving disqualification under section 164 of the Sentencing Act 2020. An extended re-test linked solely to the obligatory disqualification for the count placed on the file must be quashed.

The appellant pleaded guilty to causing serious injury by dangerous driving, contrary to section 1A of the Road Traffic Act 1988. He was later convicted of causing grievous bodily harm with intent arising from the same conduct.

At the Crown Court at Wolverhampton, the judge imposed nine years and three months’ imprisonment for the grievous bodily harm offence and no separate penalty for the dangerous-driving count. The judge also imposed a driving disqualification and an extended re-test.

The appellant appealed by limited leave against the lawfulness of the sentence imposed on the alternative dangerous-driving count.

1. Appeal allowed. The court quashed the sentence of no separate penalty for causing serious injury by dangerous driving and directed that count to lie on the file.
2. Following R v Butler [2023] EWCA Crim 676 and R v Ismail [2019] EWCA Crim 290, where alternative offences arise from the same criminal conduct, a defendant who has pleaded guilty to the lesser offence but is later convicted of the more serious offence should have the lesser count left on the file.
3. The reason is that a guilty plea does not become a conviction until sentence is passed. A disposition of no separate penalty is itself a sentence for that offence. It would therefore create a second conviction for alternative offences based on the same conduct.
4. The driving disqualification remained in force, but was treated as imposed by the Court of Appeal under section 164 of the Sentencing Act 2020.
5. The extended re-test order was quashed. It applied only to the obligatory disqualification under section 36 of the Road Traffic Offenders Act 1988 for the dangerous-driving count, which was now to lie on the file.

• Court of Appeal (Criminal Division): In [2024] EWCA Crim 1162, the court allowed the limited appeal against sentence, quashed the no-separate-penalty sentence on the dangerous-driving count, and directed that count to lie on the file.
• Crown Court at Wolverhampton: HHJ Rebecca Crane sentenced the appellant to nine years and three months’ imprisonment for causing grievous bodily harm with intent, imposed no separate penalty for dangerous driving, and made driving-disqualification and extended re-test orders.