Law Report: Custodial sentences were justified: Regina v Oliver and Regina v Little. Court of Appeal (Lord Taylor of Gosforth, Lord Chief Justice, Mr Justice Potts and Mr Justice Judge), 27 November 1992

Where an offence passed the custody threshold but there was sufficient mitigation to impose a community sentence instead, if a further offence was committed while the community sentence was in force, the defendant would have deprived himself of much of the mitigation which had led the original court to pass a community sentence.

The Court of Appeal dismissed appeals against sentence.

The appellants were in breach of probation orders for two offences of dwelling house burglary and were sentenced in October 1992 to 12 months' detention in a young offender institution.

Andrew J Robertson (Registrar of Criminal Appeals) for the appellants; David Calvert-Smith and David Thomas (CPS) as amicus curiae.

LORD TAYLOR CJ, giving the judgment of the court, said that the appellants appealed on the ground that the court had no jurisdiction to pass sentence for the offences for which they had been placed on probation before the Criminal Justice Act 1991 had come into force in October 1992.

The making of a probation order prior to October 1992 was not a sentence. If the appellants committed any offence while subject to probation orders they were liable to be brought back and dealt with as if they had just been convicted of the original offences under section 8 of the Powers of Criminal Courts Act 1973. Section 14(1) of the 1991 Act, by bringing Schedule 2 into effect, continued the power formerly found in section 8 of the 1973 Act.

When the appellants appeared before the Crown Court in October 1992, they were liable to be 'sentenced' as if they had just been convicted of the offences for which they were placed on probation. It was also submitted that a custodial sentence was not justified. There might well be cases where, notwithstanding that the offence itself passed the custody threshold, there was sufficient mitigation to lead the court to impose a community sentence. Nevertheless, if a further offence or offences were committed while the community sentence was in force, and the defendant was brought to court for sentence, he would have deprived himself of much of the mitigation such as good character, genuine remorse, which had led the original court to pass a community rather than a custodial sentence.

Once an offender had qualified for a custodial sentence, the court was not precluded from passing on the same occasion custodial sentences for offences which did not themselves satisfy the statutory requirements. However it would usually be inappropriate for consecutive sentences to be passed for offences which did not themselves satisfy the requirements relating to custody or for sentences to be made longer than strictly justified by reference to those offences which did qualify. The sentences passed were not excessive.

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