Law Report: Counsels' duty on sentencing powers: Regina v Hartrey - Court of Appeal (Criminal Division) (Lord Justice Steyn, Mr Justice Pill and Mr Justice Wright), 3 December 1992

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It is the duty of both prosecuting and defence counsel to inform themselves of the court's sentencing powers in any case in which they are instructed, to know what sentencing options are open to the trial judge and to correct him if he should make a mistake.

The Court of Appeal substituted sentences totalling 12 months for offences of theft and breach of probation orders.

In March 1992 the appellant appeared before Judge DaCunha to be dealt with for two offences of theft and for breaches of 21 probation orders. The probation orders were for driving offences which were non-imprisonable, for offences of criminal damage carrying a maximum of three months' imprisonment and for handling offences carrying a maximum of six months' imprisonment. Judge DaCunha passed concurrent sentences of nine months for each breach of probation to run consecutively to concurrent sentences of 6 and 12 months for the two counts of theft. The appellant appealed against the total sentence of 21 months.

Carol Hagen (Registrar of Criminal Appeals) for the appellant.

MR JUSTICE WRIGHT, giving the judgment of the court, said that the judge, in passing sentences of nine months for each breach of probation acted in excess of his jurisdiction. Counsel on both sides of the record were derelict in their duty to the court in that they failed to draw the attention of the judge to the fact that he was passing a sentence which was outwith his powers.

It should not be thought that errors of this kind were of academic importance where they made no difference to the overall sentence which had been validly imposed; other components of the sentence might be struck down for different reasons and the risk of injustice was always present. Errors of this kind reflected little credit on those who made them and those who permitted them to be made.

The Court of Appeal had repeatedly pointed out the professional duty which was incumbent on counsel in this regard. But the depressing frequency with which cases came before the Court of Appeal in which mistakes of this kind had been made and gone uncorrected would seem to indicate that those exhortations were simply being ignored by the profession.

Yet again, and without wishing to derogate from the responsibility of the judge himself to be alert to the limitations imposed on him by statute, the Court of Appeal stressed that it was the duty of both prosecuting and defence counsel to inform themselves of the extent of the court's powers in any case in which they were instructed, to know what options were open to the trial judge and to correct him if, as it was unfortunately only too easy to do in the morass of legislation which governed the subject, he should make a mistake.

Prosecuting counsel, in particular, was not there merely to recite a brief resume of the facts, to produce the antecedent history of the defendant and thereafter to take no further interest in the proceedings. Any time a mistake of this kind was made and was not corrected within the permitted period, a considerable sum of public money had to be expended to put the matter right.

Having considered the circumstances of the case, the proper sentence would have been three months' imprisonment on each count of theft to run consecutively and six months' imprisonment for the breach of probation order for the handling offences again to run consecutively. No separate penalty should be imposed for the other breaches of probation.

Ying Hui Tan, Barrister