No: 201103383 A1 
Neutral Citation Number: [2011] EWCA Crim 2030
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
Strand
London, WC2A 2LL

Friday, 5th August 2011

B e f o r e:

LADY JUSTICE HALLETT DBE 

MR JUSTICE BEAN 
 
MRS JUSTICE SWIFT DBE 
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R E G I N A 

v 

ANTHONY EDWARD MITCHELL
 
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Mr J Bloomer (who did not appear below) appeared on behalf of the Appellant
Mr B Leonard (who did not appear below) appeared on behalf of the Crown
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J U D G M E N T
1.	MR JUSTICE BEAN:  This is an application for leave to appeal against sentence referred to the full court by the Registrar because it involves a point of law.  We grant leave.
2.	On 23rd February 2010 the appellant assaulted his girlfriend by kicking and punching her and caused injuries including a broken nose and black eyes.  He was charged with assault occasioning actual bodily harm, and on 21st December 2010, at the Winchester Crown Court, received a sentence of imprisonment of seven months suspended for 18 months, together with some conditions which for present purposes are not material.  
3.	Only ten days after this sentence the appellant committed another offence.  It was New Year's Eve.  He went to a public house in Fleet, Hampshire.  He was asked to leave after using foul language.  There were two men acting as door staff who took the applicant outside and ushered him away.  He went down a side passage and was followed by the landlord, who told him to leave.  The applicant became very aggressive and threatened to smash the landlord's head in with a hammer.  The applicant climbed over a fence into the pub's beer garden.  The door staff stopped him.  He reappeared at the front door.  He tried to attack the landlord, who managed to evade a punch thrown by him.  The appellant said to one of the door staff, Imran Javed: "Go back to your own fucking country.  Fucking Pakis.  Go back to Saudi Arabia, you cunt".  The door staff took hold of him as he tried to punch the landlord.  The police were called.  The applicant was arrested and taken to the police station.  While at the police station he continued to say racially abusive things about the door staff.
4.	On the evening of 23rd February 2011 the appellant's neighbour, Leigh Anne Hurley, came to his door and asked him to turn the volume of his music down.  He had moved in a few weeks earlier and on several occasions was drunk and aggressive and played music extremely loudly.  He did not respond to the request to turn the music down.  He went to the complainant's door and said: "Is your boyfriend going to fight me then?".  She asked him to turn the music down.  He went back upstairs.  As her boyfriend left, the appellant was heard to say: "I'm going to kill you, you fucking bitch".  The music started up again.  The police were called.  They attended at the appellant's flat.  He would not let them in.  They shouted through the letterbox.  He turned the music down, but as soon as they had left turned it up again.  The police were called back again.  At 2 am they could hear the music from the street.  They knocked on his door for several minutes.  He responded by saying: "Fuck off.  What the fuck do you want?  Fuck off".  He then opened the door and let the police in.  He was drink and was slurring his speech heavily.  The appellant then accused one of the police officers of having assaulted him previously.  He said the officer was "fucking going down".  He would not calm down.  He was arrested.  On arrival at the police station he said of one of the officers: "I'm going to make him my bitch and I'm going to slap him up every day".  He then said: "You fucking cunts, you're all the same.  You fucked up my eye.  I'm brain damaged.  Fuck you".
5.	On 4th March 2011 he appeared at the North East Hampshire Magistrates' Court.  He had clearly committed the two more recent offences in breach of the terms of the suspended sentence imposed in December 2010.  He admitted that breach.  
6.	In respect of the New Year's Eve incident, he had been charged with the offence of racially aggravated use of threatening, abusive or insulting words or behaviour likely to cause harassment, alarm or distress.  That is an offence triable either way with a maximum sentence when tried in the Crown Court of two years' imprisonment.  He indicated a plea of guilty to that and, according to the register of the Magistrates' Court of which we have a copy, was "Committed to Winchester Crown Court for sentence or to be otherwise dealt with under section 6 Powers of Criminal Courts (Sentencing) Act 2000 on 25/03/2011 at 09.30 or such other date, time or place as the Crown Court directs in custody".  
7.	In respect of the 23rd February incident he pleaded guilty to a charge of contravening section 5 of the Public Order Act.  The court has no power to impose anything more than a fine for that offence.  That offence also was committed to the Crown Court under section 6 of the 2000 Act.
8.	On 17th May 2011 he appeared for sentence before the Recorder of Winchester, His Honour Judge Cutler.  The learned judge activated the seven month suspended sentence, and no complaint is made or could be made about that.  In respect of the racially aggravated threatening, abusive or insulting words or behaviour, he enquired what his powers were and was told by counsel that the maximum sentence was two years.  He imposed a sentence of 12 months' imprisonment consecutive to the seven months activated suspended sentence, making 19 months in all.  He imposed no separate penalty for the summary only matter.
9.	The reason why we have granted leave to appeal is that the staff of the Criminal Appeal Office have drawn our attention, as the judge's attention was not drawn, to the provisions which limit the powers of the Magistrates' Court when sentencing for one offence triable either way and one offence triable summarily and to the powers of the Crown Court to which such offences are committed.  
10.	By virtue of section 6 of the Powers of Criminal Courts Sentencing Act 2000 (the provision under which, according to the memorandum, this case was committed to the Crown Court), taken with section 7, the Crown Court is limited to the sentencing powers which the magistrates would have had.  Section 7 of the 2000 Act, so far as material, provides:
"(1) Where under section 6 above a magistrates' court commits a person to be dealt with by the Crown Court in respect of an offence, the Crown Court may after inquiring into the circumstances of the case deal with him in any way in which the magistrates' court could deal with him if it had just convicted him of the offence.  
 (2) Subsection (1) above does not apply where under section 6 above a magistrates' court commits a person to be dealt with by the Crown Court in respect of a suspended sentence, but in such a case the [powers of the court under paragraphs 8 and 9 of Schedule 12 to the Criminal Justice Act 2003] (power of court to deal with suspended sentence) shall be exercisable by the Crown Court."
11.	Had the magistrates been sentencing for the two new offences and had they both been triable either way, the magistrates would have been able to sentence to a total of 12 months' imprisonment, but since only one of the new offences was triable either way, they were limited to six months.
12.	The exception provided by subsection (2) to the general rule under subsection (1) confining the Crown Court to the powers of the Magistrates' Court is not applicable in this case.  That is because the committal in respect of the suspended sentence imposed on 21st December 2010 was not a committal under section 6 of the 2000 Act, rather it was a committal under paragraph 11 of Schedule 12 to the Criminal Justice Act 2003.  It follows that Judge Cutler's powers were limited to six months' imprisonment in respect of the New Year's Eve incident.  
13.	We strongly suspect that the Magistrates' Court were wrongly advised and that, had they addressed their mind to the problem which this appeal has revealed, they would have committed the defendant on the New Year's Eve charge under section 3 of the Powers of Criminal Courts (Sentencing) Act 2000, the section under which justices commit a defendant to the Crown Court on a charge where they consider that their powers of punishment would be inadequate.  Our belief that they would have done so is reinforced by the fact that the memorandum records, as we have said, that they did not receive a plea of guilty from the defendant but merely asked for and were given an indication that he was willing to plead guilty to this offence.  
14.	Be that as it may, and in the absence of evidence to the contrary, we consider that we are bound and that the judge was bound by the terms of the certificate and by the restriction to six months' imprisonment.  
15.	The appellant must be given some credit for his plea of guilty, but we consider that in a case where he has been the remarkably fortunate beneficiary of a statutory provision to which the courts below did not have their attention drawn, and where it is impossible to see what defence he could have had to the charge, that credit should be limited to one sixth.  We accordingly quash the sentence of 12 months' imprisonment on the racially aggravated threatening, abusive or insulting words or behaviour charge and substitute one of five months' imprisonment consecutive to the suspended sentence, making a total sentence of 12 months' imprisonment.  
16.	We should add that had it not been for this stroke of luck for the appellant arising out of the extraordinarily convoluted statutory provisions, we would have dismissed this appeal against sentence.  The sentence imposed by Judge Cutler was well merited and it is unfortunate that, for technical reasons, it was not a lawful sentence.  The appeal is allowed in the manner which we have indicated.