McGuiness, R v

J U D G M E N T

1. MR JUSTICE JACK: This renewed application for leave to appeal concerns the powers of the Crown Court when sentencing for offences committed to it for sentence by the magistrates, which include both offences triable either way and offences triable summarily. In particular it raises the question whether the Crown Court can order that a sentence for an offence triable summarily shall be served consecutively to a sentence for an offence triable either way, even though the total exceeds the limit on the sentencing powers imposed on magistrates by section 133 of the Magistrates' Courts Act 1980.

2. The facts which give rise to the issue are as follows.

3. On 2nd April 2002 the appellant drove a car when disqualified from driving. The car was stolen and he was prosecuted for handling stolen goods in addition to driving when disqualified. He pleaded guilty to both in the Magistrates Court and was committed for sentence to the Reading Crown Court. On 7th June 2002 he was sentenced by His Honour Judge Playford QC to 15 months' imprisonment on the handling charge and six months for driving while disqualified, consecutive to the 15 months, making a total of 21 months. It was then submitted that the sentence was not permitted by law. On 14th June 2002 Judge Playford heard further argument and confirmed his sentence.

4. Handling stolen goods is triable either way. Driving while disqualified is triable summarily. The committal for sentence in respect of the handling was ordered under section 3 of the Powers of Criminal Courts (Sentencing) Act 2000. The committal in respect of the driving while disqualified was effected under section 6 of that Act.

5. The relevant statutory provisions may be summarised as follows.

6. The primary power of magistrates to commit a person convicted of an offence triable either way to the Crown Court for sentence is now provided by section 3 of the Powers of Criminal Courts (Sentencing) Act 2000. The power arises where, inter alia, the court is of opinion that the offence was so serious that greater punishment should be inflicted than the Magistrates' Court has power to impose. (There is also power to commit for sentence an offence triable either way arising under section 4(2). This was not the power exercised here and the court is not today concerned with the operation of the complex provisions of that section).

7. When a committal for sentence is effected under section 3, by section 5(1) the Crown Court may then deal with the offender as if he had been convicted on indictment.

8. Section 6 concerns provisions empowering magistrates to commit other offences for sentence where, inter alia, they commit an offence for sentence under section 3 (the first offence). Section 6(2) applies where the first offence is an indictable offence. An offence triable either way is an indictable offence: Interpretation Act 1978, Schedule 1. Under section 6(2) the magistrates may commit for sentence to the Crown Court any other offence in respect of which they have power to deal with the offender and of which he has been convicted.

9. Section 7(1) provides that where a person is committed under section 6 for sentence in respect of an offence, the Crown Court may deal with him in respect of that offence in any way in which the Magistrates' Court could deal with him. Section 31 of the Magistrates' Courts Act 1980 provides that, without prejudice to section 133 of the Act, a magistrates' court shall not impose a sentence of imprisonment for more than six months in respect of any one offence. Section 133 of that Act relates to consecutive sentences. Section 133(1) empowers a magistrates' court to impose consecutive sentences but with an aggregate not exceeding six months. Section 133(2) provides that, subject to further provisions, where two or more terms of imprisonment are imposed in respect of offences triable either way, the aggregate may exceed six months but not 12 months. That does not apply here.

10. The submission is that, as the magistrates could not have made the sentence of six months for disqualified driving consecutive to the sentence for handling, the Crown court could not do so. That, it is said, is the effect of section 7(1) of the Act of 2000 taken with section 133 of the Magistrates' Courts Act.

11. In our judgment section 7(1) is not to be construed as limiting the power of the Crown Court to make consecutive a sentence passed on an either way offence committed for sentence under section 3 and a sentence passed on a summary offence committed for sentence under section 6. The sentence passed by the Crown Court on the either way offence will almost inevitably exceed six months, the limit of the magistrates' powers. For the magistrates may only commit for sentence under section 3 if they are of opinion that greater punishment should be inflicted than they can impose. So, if the submission is right, the Crown Court could very seldom impose any additional penalty, that is a consecutive sentence for the summary offence. We conclude that the effect of section 7(1) is to limit the Crown Court to a total of six months in respect of any summary offences committed to it for sentence under section 6. But section 7(1) has no application where the court is considering whether those sentences and the sentence passed on the either way offence committed for sentence under section 3 should be consecutive or concurrent.

12. Authority supports this conclusion. In Cattell (1986) 8 Cr.App.R (S) 268 this court held that under the previous statutory provisions the Crown Court was limited in respect of summary offences committed for sentence to a total of six months and adjusted four sentences passed on summary offences accordingly. It left consecutive a sentence passed for breach of a Crown Court suspended sentence which had also been committed for sentence by the magistrates. The court did not question its power in that respect. Section 56(5) of the Criminal Justice Act 1967 was the applicable section providing that the Crown Court should deal with the summary offences in any way in which the magistrates court might have dealt with them.

13. In Whitlock (1992) 13 Cr.App.R (S) 157 this court had to consider sentences passed on an offender following committal for sentence in respect of a number of either way offences, a number of summary offences committed for sentence under section 56 of the Criminal Justice Act 1967, and also breaches of probation. The court adjusted the sentences so that the Crown Court sentences on the either way offences stood but were consecutive instead of concurrent, total 13 months. The four month sentences on the summary offences were all made concurrent, but consecutive to the 13 months, and sentences of four months for breach of the probation order were also made consecutive, total 21 months. The court did not question its power to make the sentences on the summary offences consecutive to those on the either way offences, but it did consider that position in respect of the breaches of the probation order. Mr Justice Jowitt stated at page 159:

"We have also had in the course of this appeal to consider the power which the Crown Court has in respect of the original offences in a case for which a probation order has been made, when further offences put a defendant in breach of that order. The powers of the Crown Court are dealt with by the Powers of Criminal Courts Act 1973, section 8(8). The court has power to deal with an offender in any way in which the magistrates' court could deal with him if he had just convicted him of that offence. We do not read that subsection as meaning that the court has to deal with him as though it had just convicted him of the probation offence, along with any other offences, so that the defendant would have the benefit in respect of all his offences of section 133(1) of the 1980 Act. Indeed that would be an absurd result, because it would mean that an offender who had committed a series of offences for which he was liable to be sentenced to six months' imprisonment would in effect, if he was also in breach of a probation order made for summary offences, receive no extra penalty in respect of those extra matters."

14. We conclude that the judge was entitled to pass the sentences which he did. The renewed application is dismissed.