Case No: 20024118Y4
Neutral Citation No: [2002] EWCA Crim 2951
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE CROWN COURT AT WORCESTER
HIS HONOUR JUDGE MOTT
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 19 DECEMBER 2002

Before :

LORD JUSTICE MANTELL
MR JUSTICE BELL
and 
MR JUSTICE ANDREW SMITH
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Between :

	REGINA		
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	RICHARD MARK GWYNN		

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Mr R Rickarby (instructed by the Registrar) for the Appellant
Mr N Cartwright (instructed by the CPS) for the Crown

Hearing dates : 5 December 2002
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JUDGMENT : APPROVED BY THE COURT FOR HANDING DOWN (SUBJECT TO EDITORIAL CORRECTIONS)

Mr Justice Andrew Smith: 

1.	On 11 February 2002 at the Crown Court at Worcester the Appellant pleaded guilty to 6 charges: one charge of theft, four charges of criminal damage, and one charge of having an offensive weapon.  On 19 April 2002 he was sentenced to a total of 18 months’ imprisonment.  This comprised sentences of six months for theft, of three months’ imprisonment on the counts of criminal damage and of a further three months’ term for having an offensive weapon. All the sentences were ordered to be served consecutively apart from one of the sentences for criminal damage, which was to be served concurrently.   In ordering that this sentence be served concurrently, the Judge explained, “That is your discount for pleading guilty to the damaging property counts”.   The appellant appeals against his sentence by leave of the Single Judge.
2.	All the charges arose from this incident.  At about 8.30pm on 17 November 2001, the Appellant damaged four cars in a lay-by with a bar that was about two feet long.  The damage was by way of breaking windows and damaging doors.  The cost of repairing the cars ranged from about £75 to £800, and in total was some £2,200.  The Appellant then went to a shop with the bar and told the assistant that he wanted 20 cigarettes.  Rather than argue with him, the shop assistant allowed the appellant to take the cigarettes, and he left without paying.  The police were summoned, and caught the appellant as he was running away.  They arrested him, and he told the officers that he had hidden a bayonet under a car, this being the basis of the charge of having an offensive weapon.     
3.	As a result of these events, the appellant was charged with the six offences to which we have referred.  He was also charged with robbery of the cigarettes, but in due course the prosecution offered no evidence on that charge and he was found not guilty under section 17 of the Criminal Justice Act 1967.
4.	Mr Rickarby, who appeared for the appellant both when he was sentenced and before us, makes no complaint about the sentences for theft and for possession of an offensive weapon.  He submits, however, that the Court could not lawfully pass a sentence of longer than six months in total on the four criminal damage charges.  If this submission is correct, it follows first that the sentence was three months longer than the maximum lawful sentence, and secondly that the sentence passed by the Judge did not include any discount for the pleas of guilty on the criminal damage charges, despite his intention that it should.
5.	An offence under section 1 of the Criminal Damage Act 1971 is triable either on indictment or summarily: see section 17 of and schedule 1 paragraph 29 to the Magistrates’ Court Act 1980 (“MCA”).    However, under section 22 of MCA, if it appears clear to the magistrates’ court that the “value involved” in an offence of criminal damage does not exceed £5,000 (measured in a case such as this by the market price for the repair of the damage), “the court shall proceed as if the offence were triable only summarily”.   (We mention in passing that the effect of section 22(11) of the MCA is that where as here a defendant faces more than one charge of criminal damage the relevant figure is the aggregate of the values involved.)   Consequently the magistrates’ court’s power of punishment for such an offence is limited to a term of imprisonment of 3 months or a fine on level 4 on the standard scale: see section 33(1) of MCA, which provides “Where in pursuance to subsection (2) of section 22 above a magistrates’ court proceeds to the summary trial of an information, then, if the accused is summarily convicted of the offence (a)…the court shall not have power to impose on him in respect of that offence imprisonment of more than 3 months or a fine greater than level 4 on the standard scale; and (b)  section 3 of the Powers of Criminal Courts Sentencing Act 2000 [which provides for the magistrates’ court committing an offender to the Crown Court for sentence] shall not apply as regards that offence”.   
6.	If a defendant faces several such charges of criminal damage before a magistrates’ court, the court’s powers are limited by section 133(1) of the MCA, which provides that “…where a magistrates’ court imposes two or more terms of imprisonment to run consecutively the aggregate of such terms shall not…exceed 6 months”.    
7.	Section 40 of the Criminal Justice Act 1988 provides that “an offence mentioned in the first column of Schedule 2 to the [MCA] which would otherwise be triable only summarily by virtue of section 22(2) of that Act” may be included in an indictment “if the charge – (a) is founded on the same facts or evidence as a count charging an indictable offence”. It is not in dispute that the charges of criminal damage against the appellant satisfied the condition. 
8.	Section 40(2) of the Criminal Justice Act, 1988 provides that, “Where a count charging an offence to which this section applies is included in an indictment, the offence shall be tried in the same manner as if it were an indictable offence, but the Crown Court may deal with the offender in respect of it in a manner in which the magistrates’ court could have dealt with him”.    This restriction includes the limit of 6 months upon consecutive terms of imprisonment prescribed in section 133 of the MCA: see R v Fullerton, [1969] CLR 383 and R v Cattell, (1986) 8 Cr App R (S) 268, (which two cases concerned s.56 of the Criminal Justice Act 1967). 
9.	The criminal damage offences were included in the same indictment as the robbery charge, which was triable only on indictment. The Appellant was therefore sent for trial for the robbery and on the other six charges at the Crown Court under section 51 of the Crime and Disorder Act 1988.     The procedure where persons are sent for trial under section 51 is in schedule 3 to the Act: see section 52(6).   Where the Crown Court has to determine whether an offence listed in schedule 2 to the MCA (such as an offence of criminal damage) is a summary offence, the relevant provisions are at paragraph 14 of the schedule.   Paragraph 14(3) provides that “If it appears to the court that the value of the offence involved does not exceed the relevant sum [that is to say, in the case of these criminal damage charges, £5,000], it shall treat the offence as a summary offence”.  Accordingly in R v Alden, [2002] 2 Cr App R (S) 74, Rose LJ said this (at para 22):
“It is necessary, briefly, to refer to the effect to section 51 and 52 and schedule 3 of the Crime and Disorder Act 1998.  These, in our judgment, make it clear that, if a defendant appears before the Magistrates’ Court charged with an indictable only offence and a related offence of criminal damage, the Magistrates’ Court must send the defendant for trial for both matters, without making any determination, under section 22 of the Magistrates’ Courts Act 1980.  When the defendant appears before the Crown Court, the Crown Court must perform substantially the same task as the Magistrates’ Court would have performed.  If it appears to that court that the value involved exceeds the relevant sum, it treats the offence as an indictable offence.  If it appears it does not exceed the relevant sum, it treats the offence as a summary offence.  If the Crown court determines it is clear that the damage does exceed £5,000, it must treat the offence as indictable and the maximum sentence will be 10 years’ imprisonment, if the defendant is convicted, even if it can be shown subsequently that the value of the damage does not exceed £5,000.”
10.	In this case, the valuation of the damage was never a difficult or controversial matter, and the question was dealt with at the Crown Court shortly and rather informally.  However, there seems to us no doubt that the Judge accepted that the “relevant sum” was not exceeded and that he should treat the criminal damage offences as summary offences.    We infer this from the following exchange:
Prosecuting Counsel (having stated the cost of repairing each car):  By virtue of the damage each of those counts is plainly summary in nature, it being less than £5,000 in each case”.
Judge: So what is the -?
Prosecuting Counsel: Three months”.  
11.	In R v Alden, the court was considering a case in which the Appellant defendant pleaded guilty before the Crown Court to four charges: one of common assault; one of intentional harassment, alarm and distress contrary to section 4A of the Public Order Act, 1986; one of criminal damage; and one of assault occasioning actual bodily harm.   The latter two charges were added to the indictment on the occasion when the Appellant appeared before the Crown Court and pleaded guilty to the four counts.   He was sentenced to a total of 1 year and 6 months, which was made up as follows:  10 months for the assault occasioning actual bodily harm; 3 and a half months for the offence against the 1986 Act; 2 and a half months for the criminal damage offence; and 2 months for the common assault.  All the sentences were to be served consecutively.  Accordingly, the total term of imprisonment for the three offences other than assault occasioning actual bodily harm was 8 months.    The Court identified the following question (at para 3):
“At the heart of this appeal is the question of whether such an 8 month sentence would be permissible, which it would not if those three other offences were all summary offences so that the Crown Court’s powers of sentencing were limited to those of the justices; that is to say, a total of only 6 months could have been passed in relation to those three offences.”
12.	Therefore in R v Alton the “critical question [was] whether or not the criminal damage offence… was a summary offence or an either way offence at the time that the Crown Court dealt with the matter” (para 6).    Following the case of R v Fennell, [2000] CAR 318, the Court concluded that it was the latter, and so (at para 33) that, “The criminal damage offence was not a summary offence requiring a capping of the Crown Court sentencing powers to the 6 months permissible to the justices had they been dealing with three summary offences”.     In reaching this conclusion, the court said this (at para 31):
“If an offender appears for sentence before the Crown Court, for criminal damage otherwise than under a particular provision specifically restricting the sentencing powers of the Crown Court, then the maximum sentence available is 10 years.  If a defendant appears before a Magistrates’ Court charged with an offence of criminal damage, the court must proceed under section 22 of the Magistrates’ Courts Act 1980, to determine the apparent value of the damage.  If that apparent value is less than £5,000, it must proceed as if the offence were a summary offence.  After such a determination, an offence treated as a summary offence is subject to the maximum sentence of 3 months’ imprisonment, whether the offender is sentenced by the Magistrates, or, ultimately, sentenced by the Crown Court because the offence has come before the Crown Court on committal by the magistrates, under section 40, or otherwise.”
13.	As is apparent from R v Alton, the question whether there was a six months limit on the total permissible sentence depends upon whether or not the consecutive sentences are passed for offences that are either actually summary or to be treated as if summary. In R v Alton the criminal damage charge was introduced to the indictment by amendment, and so neither section 22 of the MCA nor schedule 3 to the Crime and Disorder Act 1988 came into play.   The position here is different.  Having accepted that it was clear that the damage was less than the relevant sum, the court should have proceeded as if the offence was a summary one, and recognised that its powers for sentencing the criminal damage offences were limited to six months imprisonment in total.    
14.	Accordingly, it was not within the court’s power to order that three sentences of three months each for criminal damage be served consecutively.   In fairness the sentencing Judge, we mention that regrettably his attention was not drawn to this.
15.	We consider that it would be wrong simply to adjust the Appellant’s sentences so that the total term for the criminal damage offences is the maximum six months.   The Appellant pleaded guilty to them.  The sentencing Judge meant to give him credit for his pleas by ordering that the fourth sentence be served concurrently.   If we substituted a sentence of six months in total for these offences, the appellant would be given no credit for the pleas.    We therefore reduce the terms of imprisonment on each of the criminal damage counts to two months, and order that the sentences on two of them be served consecutively (that is to say, the sentence on count 4 be served consecutively to that on count 3) and that the sentences on the other two (counts 5 and 6) be served concurrently.   The effect of this is to reduce the total sentence to 13 months.