West Law Report

Sentencing for offences taken into consideration

Posted in Times Law Report by mrkooenglish on October 28, 2008

From The Times
October 20, 2008
Sentencing for offences taken into consideration

Court of Appeal, Criminal Division
Published October 20, 2008
Regina v Lavery
Before Lord Judge, Lord Chief Justice, Mr Justice Owen and Mr Justice Christopher Clarke
Judgment October 9, 2008

There was no reason in principle why an offence taken into consideration, which was more serious than the offence charged, should not result in a higher sentence than would otherwise have been the case.

When assessing whether there was a significant risk to members of the public arising from the commission by a defendant of further offences, the court was entitled to take account of offences which a defendant had asked to be taken into consideration.

The Court of Appeal, Criminal Division, so stated when refusing an application by Dominic Robert Lavery for leave to appeal against a sentence of detention for public protection with a minimum specified period of 30 months imposed by Judge Everett at Bolton Crown Court, on June 11, 2008, on his plea of guilty to an offence of robbery. Four other offences of robbery were taken into consideration. Mr Anthony Morris, assigned by the Registrar of Criminal Appeals, for the defendant; Mr Mark Kellett, who did not appear below, for the Crown.

MR JUSTICE OWEN, giving the judgment of the court, said that the application gave rise to two issues as to the proper approach to be taken to offences that a defendant invited the court to take into consideration: 1 How should the court approach offences to be taken into consideration that revealed offending of a substantially more serious nature than the offence or offences for which the defendant stood to be sentenced? 2 Was the court entitled to take account of offences to be taken into consideration when assessing whether there was a significant risk to members of the public occasioned by the commission by the defendant of further specified offences under sections 225 and 226 of the Criminal Justice Act 2003.

On the first issue, as was said in R v Miles (The Times April 10, 2006; [2006] EWCA Crim 256) the sentence was intended to reflect a defendant’s overall criminality. There was no reason in principle why an offence to be taken into consideration, which was of a more serious nature than the index offence or offences, should not result in a higher sentence than would otherwise have been the case, as the sentence would then reflect the defendant’s overall criminality.

However, their Lordships shared the judge’s concern as to the manner in which this case had been handled and presented. There were dangers in an approach which suggested that if a crime could somehow be cleared off the books then all was well. It was not. Inappropriate noncharging and undercharging were inimical to the administration of justice.

It was important that the prosecution followed the relevant part of the Crown Prosecution Service Codes of Practice.

On the second issue, it was clear from section 229 of the 2003 Act that the court was entitled to take account of offences to be taken into consideration when assessing whether there was a significant risk under sections 225 to 228.

Under both section 229(2) and (3) the court might take account of “any information which is before it about any pattern of behaviour of which the offence forms part” and “any information about the offender which is before it”.

The conclusion at which the judge arrived was fair and gave due credit both for the plea of guilty and for accepting responsibility for offences that might not otherwise have been brought to justice. Solicitors: CPS, Bolton.

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