Samuel [2019] EWCA Crim 595
Summary
R v Samuel [2019] EWCA Crim 595 concerned an appeal against activation of a suspended sentence and concurrent sentences for summary offences, in which the Court of Appeal (Lord Justice Simon, Mr Justice Sweeney and Mr Justice Warby) gave leave but dismissed the appeal.
Mr Samuel, aged 43, had a 30-year criminal history spanning offences of violence, drug supply and persistent driving offences. In April 2017 the Recorder at Southwark Crown Court sentenced him to 24 months’ imprisonment suspended for two years, with a twelve-month electronically monitored curfew and 300 hours of unpaid work, for three counts of supplying Class A drugs committed in March 2016. The offences involved street dealing of crack cocaine and heroin in Brixton. The pre-sentence report acknowledged that an immediate custodial sentence of some length was highly likely under the guidelines but recommended a suspended sentence on compassionate grounds relating to Mr Samuel’s wife, who was severely disabled following a cerebrovascular accident in 1998. She was a wheelchair user who required 68 hours per week of care from the local authority and a further 48 hours from the applicant. The local authority had stated it was unable to provide additional care. The report suggested that imprisonment would be extremely detrimental and dangerous to Mrs Samuel.
On 26 December 2017, during the operational period of the suspended sentence, Mr Samuel assaulted Mr Valapinee by pushing him multiple times and slapping him across the face in an off-licence. Shortly afterwards police stopped him driving a black Range Rover at speed. A breath test revealed 77 microgrammes of alcohol per 100 millilitres of breath, over twice the legal limit. He denied both offences but was convicted after trial at South London Magistrates’ Court sitting at Croydon on 21 March 2018. He then admitted committing offences during the operational period of the suspended sentence order and was committed to the Crown Court.
On 30 April 2018 Mr Recorder Persaud at Croydon Crown Court imposed a fine of £100 for the assault and two months’ imprisonment for driving with excess alcohol. The Recorder activated eighteen months of the suspended sentence, to be served consecutively, producing a total sentence of 20 months’ imprisonment. He also disqualified Mr Samuel from driving for four years. The Recorder held that there were no reasons advanced that would make it unjust to activate the suspended sentence. He took account of the fact that Mr Samuel had satisfied the requirements imposed in 2017 by activating eighteen months rather than the full two-year term.
Miss Rose advanced four grounds of appeal. First, that it was unjust and wrong in all the circumstances to activate the suspended sentence order. Second, that eighteen months was excessive given the applicant’s full compliance with the requirements. Third, that it was wrong in principle to impose a consecutive sentence of two months’ imprisonment for the driving offence. Fourth, that the additional year’s disqualification above the statutory minimum of three years was excessive, particularly as the applicant used his car to take his wife to medical appointments.
Before addressing the merits, the Court dealt with a procedural issue identified by the Registrar. The Magistrates’ Court register recorded that the applicant had been committed for sentence in respect of the assault and driving offence pursuant to section 3 of the Powers of Criminal Courts (Sentencing) Act 2000. That section confers power to commit only in respect of either-way offences, whereas the assault and driving offences were summary only. The proper basis for committal in respect of summary offences was section 6 of the 2000 Act, which is a secondary power exercisable as an adjunct where the Court has committed the offender on another basis.
The Court considered R v Ayhan (Murat) [2011] EWCA Crim 3184, in which Lord Judge CJ held that where magistrates properly exercised the power to commit for sentence under section 3 in respect of one or more either-way offences, a mistake in recording the statutory basis for committal of summary offences did not invalidate the committal, provided the Crown Court abided by the sentencing powers available to the magistrates in relation to the summary offences. The Court distinguished Ayhan because in the present case there was no committal in respect of any either-way offence. However, the Court was satisfied that there was power to commit under section 6 of the 2000 Act and that the same principles applied. Paragraph 11(2) of Schedule 12 to the Criminal Justice Act 2003 empowered the magistrates to commit an offender to the Crown Court where satisfied that an offence was committed during the operational period of a suspended sentence passed by the Crown Court. Section 6(1) and (4)(e) of the 2000 Act then permitted a secondary committal in respect of other matters, including summary offences of which the magistrates had convicted the offender under section 6(3). The Court held that the critical issue was whether statute gave the magistrates power to act as they did. The sentences imposed were well within the magistrates’ sentencing powers.
Turning to the merits, the Court held that the original suspended sentence order was very lenient. The Recorder’s conclusion that it would not be unjust to activate was legitimate. Mr Samuel was well aware of the consequences if he offended during the operational period. Just one third into that period he committed the assault and the driving offence. He showed no remorse but continued stubbornly and irrationally to deny his guilt of all offending. Public confidence in suspended sentences was liable to be undermined if they were left in suspension in such circumstances.
The Court rejected the argument that activation would be unjust because of Mrs Samuel’s need for support. It was open to the Recorder to assess the evidence about Mrs Samuel’s needs and associated hazards and to conclude that the factors in favour of activation outweighed these considerations. Although Mrs Samuel’s situation remained unhappy, she had received support from others and the dire consequences envisaged in the original pre-sentence report had not materialised. Miss Rose argued that society would have benefited if the applicant had been ordered to undertake a Thinking Skills Programme identified by the Probation Service, but none of the reports offered much optimism in that respect. Compliance with the original order was relevant to whether and to what extent a suspended sentence should be activated, but this was not a mechanistic exercise. Activation of eighteen months rather than the full 24 months adequately reflected the applicant’s compliance.
The Court accepted that the two-month sentence for driving with excess alcohol could appear severe in isolation and was outside the guidelines, but did not regard it as manifestly excessive in all the circumstances. The offence placed others at risk of injury or death and was the applicant’s fifth such offence in the context of a dreadful record of driving-related convictions.
As to the disqualification from driving, the Court explained that there had been some misunderstanding. The Recorder was obliged to disqualify for a minimum of three years. Having imposed imprisonment, he was bound by sections 35A and 35B of the Road Traffic Offenders Act 1988 to increase the disqualification by half the custodial term of each sentence, to ensure disqualification was served when the driver was at liberty. The only truly discretionary element was the Recorder’s decision to add two months to the minimum disqualification, which was entirely reasonable. However, following R v Needham [2016] EWCA Crim 455, this should have been explicit in the structure of the sentence. The sentence should have been expressed as a discretionary period of 38 months plus a one-month extension period to reflect the sentence for the driving offence and a nine-month uplift to reflect the activated eighteen-month term. The Recorder erred in that respect and the Court directed that the record below be amended accordingly.
In short, the Court gave leave to appeal but dismissed the appeal, save for directing amendment of the record to correct the structure of the disqualification order.
Mr Samuel, aged 43, had a 30-year criminal history spanning offences of violence, drug supply and persistent driving offences. In April 2017 the Recorder at Southwark Crown Court sentenced him to 24 months’ imprisonment suspended for two years, with a twelve-month electronically monitored curfew and 300 hours of unpaid work, for three counts of supplying Class A drugs committed in March 2016. The offences involved street dealing of crack cocaine and heroin in Brixton. The pre-sentence report acknowledged that an immediate custodial sentence of some length was highly likely under the guidelines but recommended a suspended sentence on compassionate grounds relating to Mr Samuel’s wife, who was severely disabled following a cerebrovascular accident in 1998. She was a wheelchair user who required 68 hours per week of care from the local authority and a further 48 hours from the applicant. The local authority had stated it was unable to provide additional care. The report suggested that imprisonment would be extremely detrimental and dangerous to Mrs Samuel.
On 26 December 2017, during the operational period of the suspended sentence, Mr Samuel assaulted Mr Valapinee by pushing him multiple times and slapping him across the face in an off-licence. Shortly afterwards police stopped him driving a black Range Rover at speed. A breath test revealed 77 microgrammes of alcohol per 100 millilitres of breath, over twice the legal limit. He denied both offences but was convicted after trial at South London Magistrates’ Court sitting at Croydon on 21 March 2018. He then admitted committing offences during the operational period of the suspended sentence order and was committed to the Crown Court.
On 30 April 2018 Mr Recorder Persaud at Croydon Crown Court imposed a fine of £100 for the assault and two months’ imprisonment for driving with excess alcohol. The Recorder activated eighteen months of the suspended sentence, to be served consecutively, producing a total sentence of 20 months’ imprisonment. He also disqualified Mr Samuel from driving for four years. The Recorder held that there were no reasons advanced that would make it unjust to activate the suspended sentence. He took account of the fact that Mr Samuel had satisfied the requirements imposed in 2017 by activating eighteen months rather than the full two-year term.
Miss Rose advanced four grounds of appeal. First, that it was unjust and wrong in all the circumstances to activate the suspended sentence order. Second, that eighteen months was excessive given the applicant’s full compliance with the requirements. Third, that it was wrong in principle to impose a consecutive sentence of two months’ imprisonment for the driving offence. Fourth, that the additional year’s disqualification above the statutory minimum of three years was excessive, particularly as the applicant used his car to take his wife to medical appointments.
Before addressing the merits, the Court dealt with a procedural issue identified by the Registrar. The Magistrates’ Court register recorded that the applicant had been committed for sentence in respect of the assault and driving offence pursuant to section 3 of the Powers of Criminal Courts (Sentencing) Act 2000. That section confers power to commit only in respect of either-way offences, whereas the assault and driving offences were summary only. The proper basis for committal in respect of summary offences was section 6 of the 2000 Act, which is a secondary power exercisable as an adjunct where the Court has committed the offender on another basis.
The Court considered R v Ayhan (Murat) [2011] EWCA Crim 3184, in which Lord Judge CJ held that where magistrates properly exercised the power to commit for sentence under section 3 in respect of one or more either-way offences, a mistake in recording the statutory basis for committal of summary offences did not invalidate the committal, provided the Crown Court abided by the sentencing powers available to the magistrates in relation to the summary offences. The Court distinguished Ayhan because in the present case there was no committal in respect of any either-way offence. However, the Court was satisfied that there was power to commit under section 6 of the 2000 Act and that the same principles applied. Paragraph 11(2) of Schedule 12 to the Criminal Justice Act 2003 empowered the magistrates to commit an offender to the Crown Court where satisfied that an offence was committed during the operational period of a suspended sentence passed by the Crown Court. Section 6(1) and (4)(e) of the 2000 Act then permitted a secondary committal in respect of other matters, including summary offences of which the magistrates had convicted the offender under section 6(3). The Court held that the critical issue was whether statute gave the magistrates power to act as they did. The sentences imposed were well within the magistrates’ sentencing powers.
Turning to the merits, the Court held that the original suspended sentence order was very lenient. The Recorder’s conclusion that it would not be unjust to activate was legitimate. Mr Samuel was well aware of the consequences if he offended during the operational period. Just one third into that period he committed the assault and the driving offence. He showed no remorse but continued stubbornly and irrationally to deny his guilt of all offending. Public confidence in suspended sentences was liable to be undermined if they were left in suspension in such circumstances.
The Court rejected the argument that activation would be unjust because of Mrs Samuel’s need for support. It was open to the Recorder to assess the evidence about Mrs Samuel’s needs and associated hazards and to conclude that the factors in favour of activation outweighed these considerations. Although Mrs Samuel’s situation remained unhappy, she had received support from others and the dire consequences envisaged in the original pre-sentence report had not materialised. Miss Rose argued that society would have benefited if the applicant had been ordered to undertake a Thinking Skills Programme identified by the Probation Service, but none of the reports offered much optimism in that respect. Compliance with the original order was relevant to whether and to what extent a suspended sentence should be activated, but this was not a mechanistic exercise. Activation of eighteen months rather than the full 24 months adequately reflected the applicant’s compliance.
The Court accepted that the two-month sentence for driving with excess alcohol could appear severe in isolation and was outside the guidelines, but did not regard it as manifestly excessive in all the circumstances. The offence placed others at risk of injury or death and was the applicant’s fifth such offence in the context of a dreadful record of driving-related convictions.
As to the disqualification from driving, the Court explained that there had been some misunderstanding. The Recorder was obliged to disqualify for a minimum of three years. Having imposed imprisonment, he was bound by sections 35A and 35B of the Road Traffic Offenders Act 1988 to increase the disqualification by half the custodial term of each sentence, to ensure disqualification was served when the driver was at liberty. The only truly discretionary element was the Recorder’s decision to add two months to the minimum disqualification, which was entirely reasonable. However, following R v Needham [2016] EWCA Crim 455, this should have been explicit in the structure of the sentence. The sentence should have been expressed as a discretionary period of 38 months plus a one-month extension period to reflect the sentence for the driving offence and a nine-month uplift to reflect the activated eighteen-month term. The Recorder erred in that respect and the Court directed that the record below be amended accordingly.
In short, the Court gave leave to appeal but dismissed the appeal, save for directing amendment of the record to correct the structure of the disqualification order.
Issue was taken with activation of 18 months of a 24 month term in circumstances where the appellant had complied with all requirements and fell to be sentenced for offences committed during the operational period.
Held: the extent of compliance is relevant, but this is not a mechanistic exercise, activation of 18 months rather than the full 24 adequately reflected the appellant’s compliance with the requirements.