Rogerson, R v

LORD JUSTICE ROSE: On 9th October 2003, at Lancaster Magistrates' Court, this appellant pleaded guilty and was committed to the Crown Court for sentence under section 3 of the Powers of Criminal Courts (Sentencing) Act 2000 and also under section 6 of the same Act in relation to certain motoring offences.

On 24th February 2004, at Preston Crown Court, the appellant pleaded guilty before Morland J to an offence of manslaughter in relation to the motiveless killing of an elderly man in his own garden. In relation to that offence, the judge made a hospital order under section 37 of the Mental Health Act 1983, together with a restriction order, unlimited in time, under section 41 of the same Act.

The other offences in relation to which the appellant had been committed to the Crown Court by the magistrates for sentence were of dangerous driving, driving with excess alcohol and failing to stop after an accident.

In relation to dangerous driving, the learned judge passed a sentence of 21 months' detention in a young offender institution. In relation to driving with excess alcohol, he passed a concurrent sentence of five months' detention in a young offender institution. In relation to failing to stop after an accident, he imposed no separate penalty. The learned judge also, in relation to the driving offences, disqualified the appellant from driving for a period of five years, and further ordered that, before he drove again, he undertake a driving test. On 19th March the last of those orders was amended so that the appellant should take an extended driving test.

He appeals against sentence by leave of the single judge.

It is unnecessary to rehearse the facts in relation to any of these offences. The reason for the appeal is this. Although it is conceded that it was lawfully open to the learned judge to pass, as he did, sentences of detention on the same occasion that he made the hospital order to which we have referred, it is a matter of obvious impracticability for an order made under the Mental Health Act and a sentence of custody to be simultaneously carried out. A sentence of custody takes effect from the day on which it is passed, and that clearly, in practical terms, was inconsistent with the terms of the order that the defendant should be transferred to a mental hospital forthwith.

So, despite the lawfulness of the sentences which were passed, this court has no doubt that it was, in practical terms, an inappropriate course for the judge to pass the sentence of detention which he did. Accordingly, the sentences of 21 months and 5 months' detention are quashed and no separate penalty is imposed in relation to the offences of dangerous driving and driving with excess alcohol, save that the orders made by the learned judge in relation to disqualification and for an extended driving test will remain. To that extent this appeal is allowed.

MR THOMAS: My Lord, I am expressly asked to mention the question of defence recovery costs.

LORD JUSTICE ROSE: Who are you hoping to recover them from, Mr Thomas?

MR THOMAS: I am not, my Lord, but the Registrar sent a direction to that effect to chambers. I cannot see that it can possibly have any effect at all because it cannot be recovered from --

LORD JUSTICE ROSE: Had you not mentioned it, Mr Thomas, we had no intention of making a recovery of defence costs order, and, despite the fact you have mentioned it, we still do not make any such order.

MR THOMAS: I am grateful my Lord. I had to do it, I am sorry.