R v Gerard McGuinness

When sentencing assault on an emergency worker, the court must assess the basic offence by culpability and harm, apply the aggravated-offence uplift, and give proper weight to aggravating and mitigating features. The uplift must remain proportionate to the applicable sentencing guideline.

Low-value shoplifting remains summary unless an adult elects Crown Court trial. A summary offence punishable only by a fine and carrying no driving disqualification cannot be sent for trial or committed for sentence in the circumstances identified. An unlawful sending leaves the matter in the Magistrates’ Court, so a Crown Court plea, sentence or no-evidence disposal is ineffective.

The appellant was sentenced at Canterbury Crown Court on 4 June 2024 after pleading guilty to assaulting an emergency worker, possessing a bladed article and theft. The sentence was 182 days for the assault, consecutive to 146 days for the bladed article offence, with 30 days concurrent for theft. No separate penalty was imposed for one Community Protection Notice offence.

Leave was granted to appeal the assault sentence. The appeal also exposed purported sendings of the low-value shoplifting offence and two failures to comply with a Community Protection Notice, including one offence to which the appellant had already pleaded guilty. The central issues were the proper assault sentence and the consequences of unlawful sendings to the Crown Court.

Disposition. The Court of Appeal reduced the sentence for assault on an emergency worker from 182 days to 42 days, leaving the 146-day sentence for possession of a bladed article unchanged. The total sentence was therefore 188 days. Sitting as a Divisional Court, the court also quashed the purported sendings of the theft and two Community Protection Notice offences.

1. The assault involved significant aggravating features, including previous convictions. Nevertheless, even if those features moved the basic assault to category A2, the guideline provided for a medium-level community order with a range extending to 16 weeks’ custody. The aggravated-offence uplift could not justify an eight-month notional sentence, particularly after allowing for mitigation. The appropriate notional sentence after trial was eight weeks, reduced by 25 per cent for the guilty plea to 42 days.
2. Under section 22A of the Magistrates’ Courts Act 1980, low-value shoplifting is summary unless an adult elects Crown Court trial before the summary trial begins. The appellant had not elected. The theft was also unrelated to the assault for the purposes of section 51 of the Crime and Disorder Act 1998. The magistrates therefore had no power to send it to the Crown Court.
3. The Community Protection Notice offences were summary offences punishable only by a level 4 fine. They did not satisfy the requisite condition in section 51(11) of the Crime and Disorder Act 1998. Nor could they be committed for sentence under section 20 of the Sentencing Act 2020, since there was no related indictable offence alongside which that power could operate.
4. Following Butt [2023] EWCA Crim 1131, the court considered the power exercised, whether it was exercised erroneously, the consequences of the error and the corrective steps required. The remedial powers under section 142 of the Magistrates’ Courts Act 1980 and section 66 of the Courts Act 2003 had to be used in accordance with the principles explained in Gould [2021] EWCA Crim 447. The unlawful sendings were quashed. The Crown Court plea and sentence for theft, the no-separate-penalty order and the prosecution’s offer of no evidence on the second Community Protection Notice offence could not stand. The theft was dealt with by absolute discharge, the first Community Protection Notice offence attracted no separate penalty, and the second was dismissed under section 9 of the Magistrates’ Courts Act 1980.

• Crown Court at Canterbury: On 4 June 2024, imposed 182 days’ imprisonment for assault on an emergency worker, 146 days for possession of a bladed article, and 30 concurrent days for theft.
• Court of Appeal (Criminal Division): Reduced the assault sentence to 42 days and confirmed a total sentence of 188 days. Sitting as a Divisional Court, quashed the unlawful sendings and related Crown Court disposals. The court then dealt with the offences in the Magistrates’ Court capacity.