R v Raymond Cummings

Where a low-value shoplifting offence is triable only summarily and the defendant has not elected Crown Court trial, a purported Crown Court indictment and sentence are null. The appropriate corrective course may be to reconstitute the appellate court as a Divisional Court and quash the purported sending.

When sentencing numerous offences, the court must stand back and apply totality. Individual guideline sentences and consecutive terms must produce an aggregate sentence proportionate to the overall criminality. A persistent record is aggravating, but it does not justify an excessive aggregate for a course of relatively minor offending.

The appellant pleaded guilty in the Crown Court at Bournemouth to a large number of theft, fraud, handling stolen goods and non-domestic burglary offences committed over about ten months. He received an aggregate sentence of four years’ imprisonment.

He appealed against sentence, contending that the consecutive lead sentences produced an excessive total. The court also identified that one shoplifting charge, valued at no more than £200, had been sent to the Crown Court without an election for Crown Court trial.

The issues were the consequence of that invalid sending and whether the aggregate sentence properly reflected totality.

1. The appeal against sentence was allowed to the extent stated. The original aggregate sentence was excessive. The court substituted sentences which produced a total of three years’ imprisonment, after the one-third reduction for guilty pleas.

2. Under Magistrates’ Courts Act 1980, section 22A, a low-value shoplifting offence is triable only summarily unless the offender elects Crown Court trial. As no election had been made, the purported indictment and Crown Court sentence for that offence were null: [7]. Following R v Gould [2021] EWCA Crim 447, the court reconstituted itself as a Divisional Court, granted judicial-review permission and quashed the purported sending: [8].

3. The postscript corrected the court’s initial proposed disposal of that charge. The appellant had not entered a plea, so the court could not sentence him for it. The charge therefore remained in the Magistrates’ Court. This did not affect the three-year total because the invalid Crown Court sentence had been concurrent.

4. On the valid counts, the sentencing judge had properly sought to reflect the overall seriousness by selecting consecutive lead offences and taking account of the appellant’s very poor record. However, neither lead burglary justified its individual sentence in isolation. The court had to reassess the case globally, including seven non-domestic burglaries and the additional theft, fraud and handling offences.

5. Totality required a substantial reduction from the notional accumulation of individual sentences. An aggregate of four and a half years before guilty-plea credit, reduced by one third to three years, was proportionate. The court quashed the principal consecutive sentences and substituted two years for one lead burglary and one year for the other relevant burglaries.

• Court of Appeal (Criminal Division): Allowed the appeal against sentence to the extent of substituting sentences producing a total of three years’ imprisonment. It also quashed, by judicial-review procedure, the purported sending of the low-value shoplifting charge to the Crown Court.
• Crown Court at Bournemouth: The appellant pleaded guilty to the valid counts and received an aggregate sentence of four years’ imprisonment. A purported indictment and concurrent sentence for the low-value shoplifting charge were null because there had been no election for Crown Court trial.