Neutral Citation Number: [2010] EWCA Crim 2237
Case No: 201003845 A1
IN THE COURT OF APPEAL
CRIMINAL DIVISION 
Royal Courts of Justice
Strand
London, WC2A 2LL 

Date: Thursday, 16 September 2010
 
B e f o r e:

LORD JUSTICE HOOPER 

MR JUSTICE FLAUX 
 
MR JUSTICE SPENCER 
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R E G I N A 

v 

SHAZIB MOHAMMED QAYUM
 
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Mr D Page appeared on behalf of the Appellant

Mr J Brown appeared on behalf of the Crown 
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J U D G M E N T

1.	MR JUSTICE SPENCER:  Shazib Mohammed Qayum, aged 28, applies for leave to appeal against a sentence totalling two years and nine months' imprisonment (with credit for 68 days served on remand) imposed in the Crown Court at Reading on 14 June 2010 for an offence of shop theft, having a bladed article in a public place and possession of a class A drug (heroin).  For the single offence of theft, the sentence was two years; for having a bladed article, the sentence was nine months' consecutive; for the offence of possession of a single wrap of heroin, there was no separate penalty.  An earlier suspended sentence order was activated and ordered to run concurrently.  He had been committed for sentence to the Crown Court by the East Berkshire Magistrates' Court on 7 April 2010, having pleaded guilty to the theft and to possession of a bladed article.  
2.	The application for leave to appeal has been referred to the full court by the Registrar because it was realised by the staff at the Criminal Appeal Office, to whom the court is very grateful, as should be the parties, that for reasons which will become apparent the sentence of two years imposed for the offence of theft was an unlawful sentence. The maximum sentence open to the Crown Court for that offence, in this case, was six months.  Accordingly, we granted leave at the start of this hearing.  Mr Page has appeared before us on behalf of the appellant, and Mr Brown for the respondent, and we are grateful to them for their submissions.  
3.	The brief facts of the offences are as follows.  On the afternoon of 6 April 2010, the appellant and another man, who has never been identified, went into a branch of Boots in the main street in Windsor and looked at items in the electrical section.  They left the store without selecting any items, but went back into the store five minutes later and stole a quantity of electric toothbrush heads, which they placed in a carrier bag.  The value of the items was £599.97.  
4.	They left the store without paying and were followed out by a security guard.  Outside in the street they were challenged by the security guard.  The appellant dropped the bag and ran off, as did the other man.  The security guard ran after the appellant and caught him.  As the security guard attempted to escort the appellant back to the shop, the appellant said words to the effect of, "I have made a mistake so just let me go".  The appellant struggled free and ran off again.  As the security guard was about to catch the appellant for the second time, the appellant produced a pair of kitchen scissors and said, "I'm going to stab you".  
5.	The appellant got into a taxi, but the security guard told the driver not to move because the police were on their way.  The appellant got out of the taxi and ran off.  He threw the scissors into a bush.  They were recovered soon afterwards when the appellant was arrested by police officers.  On arrival at the police station the appellant was found to be in possession of a wrap containing 435 milligrams of heroin.  
6.	On 7 April 2010 the appellant appeared before the East Berkshire Magistrates' Court and pleaded guilty to the offence of theft and the offence of possessing a bladed article.  That also put him in breach of a suspended sentence order made by the same court on 31 March 2009, just over a year earlier, when he had been sentenced to 24 weeks' imprisonment suspended for 18 months.  
7.	The magistrates committed the appellant to the Crown Court for sentence on the basis that their own sentencing powers were inadequate.  That decision was hardly surprising having regard to the appellant's previous convictions.  He had been convicted of shoplifting twice before.  In May 2003 he was fined.  In September 2003 for two offences he was sentenced to 14 days' imprisonment concurrent.  More importantly, in February 2004 he had been sentenced to a term of four and a half years' imprisonment for offences of robbery, theft, possession of a bladed article and possession of an offensive weapon.  For possession of a bladed article, the sentence had been 18 months' imprisonment, and for the offensive weapon, which is unspecified, the sentence had been six months consecutive.  Furthermore, the suspended sentence, which had been imposed in March 2009 and which the appellant had breached, was also for possessing an offensive weapon.  
8.	It seems to have been assumed when the matter came before the Crown Court that the sentence for the offences was at large in the sense that the Crown Court had jurisdiction to pass any sentence for the theft and for possession of a bladed article up to the statutory maximum for each.  They were, after all, both offences triable either way.  In fact, however, the Crown Court's sentencing powers were limited by reason of the way in which the magistrates had chosen to exercise their powers to commit for sentence under the relevant statutory provisions.  
9.	The certificate of committal confirms that, in respect of the offence of possessing a bladed article, the appellant was committed for sentence under section 3 of the Powers of Criminal Courts (Sentencing) Act 2000, whereas in respect of the offence of theft, he was committed for sentence under the provisions of section 6 of the same Act.  The distinction is critical and fundamental.  
10.	Where an offender is committed for sentence under section 3, the Crown Court may deal with him as if he had just been convicted on indictment.  So in respect of the offence of possessing a bladed article, the Crown Court could pass a sentence up to the statutory maximum of four years.  By contrast, however, where an offender is committed for sentence under section 6 of the Act, the Crown Court is restricted to the magistrates' powers of sentence for the offence.  Thus, section 7(1) of the 2000 Act provides: 

i.	"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."

11.	The relationship between the provisions of section 3 and section 6 is helpfully analysed and explained in Blackstone's Criminal Practice 2010 at paragraph D22.34.  The power to commit under section 3 may be described as a "primary committal power", whereas the power to commit under section 6 may be described as a "secondary committal power" in the sense that it is exercisable only where the magistrates commit the defendant to the Crown Court for sentence under one of their "primary committal powers".  Apposite to the present situation the commentary states: 

i.	"To take the example of a magistrates' court which has decided to commit an offender under s.3 for one either‑way offence a committal under s.6 might (for example) relate to ... another, less serious, either‑way offence of which the magistrates have convicted the offender on the same occasion ... 

ii.	The reason a committal under s.3 for the secondary offence would be inappropriate is that, because the offence is not sufficiently serious, the magistrates' powers of sentencing for it are adequate."  

12.	It follows that, in respect of the offence of theft, for which the committal was under section 6, the Crown Court was confined to the maximum sentence the magistrates could have imposed for that offence, namely six months' imprisonment.  
13.	The magistrates also committed the appellant for sentence in respect of the breach of the suspended sentence order.  Technically this committal should have been expressly under paragraph 11(1) of Schedule 12 to the Criminal Justice Act 2003, whereas the committal certificate states that the committal was again under section 6 of the Powers of Criminal Courts (Sentencing) Act 2000.  Section 6(3) does indeed give the magistrates a secondary power to commit for sentence in respect of a breach of a suspended sentence order, but only where the relevant offence is itself summary only.  
14.	In fact, the error is immaterial because the Crown Court in any event had a separate power under paragraph 8(1)(b) and paragraph 11 of Schedule 12 to the 2003 Act, even absent a committal, to deal with the appellant for breach of the suspended order, he having appeared or been brought before the Crown Court.  
15.	Finally, we mention that, although there is no reference at all in the certificate of committal to the offence of possessing a class A drug, we are assured that the omission was remedied by the learned Recorder constituting himself a District Judge in the Magistrates' Court for the purpose of committing that offence to the Crown Court for sentence, he having first in that capacity taken the guilty plea.  It seems that the appellant was only charged on the day of sentence with that offence, and the matter was dealt with in that way as a tidying‑up exercise.  So the learned Recorder clothed himself with jurisdiction to deal with it.  
16.	When the appellant had first appeared before the Crown Court on 21 May for sentence, it became apparent that there was a factual issue in relation to the offence of possessing a bladed article, which would have to be resolved.  The appellant was contending that he had not threatened the security guard with a pair of scissors, and the only reason he had the scissors with him was to cut the security tags on the items he stole.  Accordingly, the case was adjourned to a later date for the necessary evidence to be called.  When the case came into the list again on 14 June 2010, the appellant abandoned his contention in relation to the scissors, having had the opportunity of viewing the CCTV footage.  The judge, Mr Recorder Jenkins QC, therefore proceeded to sentence, and it was on that occasion that the lacuna in respect of the class A drug offence came to light and was dealt with.  
17.	Regrettably, however, no one spotted the significance of the different powers of committal exercised by the magistrates.  We feel we must emphasise and remind practitioners that it is the duty of advocates, both prosecution and defence, to check the court's sentencing powers and alert the court to traps for the unwary such as this: see the guidance in the third supplement of Archbold 2010 at paragraph C‑51.  That guidance quotes the observations of Lawton LJ in R v Clarke (RWW) (1974) 59 Cr App R 298, who said as long ago as 1974: 

i.	"We adjudge that counsel as a matter of professional duty to the court, and in the case of defending counsel to their client, should always before starting a criminal case satisfy themselves as to what the maximum sentence is.  There can be no excuse for counsel not doing this and they should remember that the performance of this duty is particularly important in a case where a man has been committed to the Crown Court for sentencing pursuant to the provisions of sections 28 and 29 of the Magistrates' Courts Act 1952, and section 56 of the Criminal Justice Act 1967.  Those statutory provisions are pregnant with dangers for court and for counsel and above all for accused persons..."  

18.	Whilst the statutes and section numbers have changed, this warning remains as important now as it was then.  Moreover, whereas under the former statutory provisions quoted above it was at least evident from the different section numbers that the court was dealing with a summary only offence under section 56 of the Criminal Justice Act 1967 rather than either way offences under sections 28 and 29 of the Magistrates' Courts Act 1952, section 6 of the Powers of Criminal Courts (Sentencing) Act 2000 applies equally to summary and either way offences where the court is exercising the secondary power of committal in the way we have described.  
19.	It follows from what we have said that the two‑year sentence for theft was unlawful because the Crown Court was limited to six months.  The question which arises is what the proper overall sentence should have been and by what combination of individual sentences, always remembering that this court's power to substitute different and possibly higher individual sentences must not result in the appellant being dealt with more severely overall than in the court below: see section 11(3) of the Criminal Appeal Act 1968.  
20.	From what has been said already, it is clear that the magistrates took the view that the most serious of the offences was the possession of a bladed article, hence the section 3 committal because their powers were inadequate.  In passing sentence the learned Recorder treated the theft as the more serious offence, aggravated by possession of the scissors.  He described it as sophisticated shoplifting fuelled by the appellant's addiction to heroin, combined with an attempt to avoid apprehension by the threat of serious violence towards the security guard.  Because the appellant had used the scissors, he considered that a consecutive sentence was appropriate.  Having regard to the totality of the sentence and the fact that the suspended sentence offence was three years old, that sentence was made concurrent.  
21.	Although there had been guilty pleas, because the appellant had sought initially to challenge the factual basis of sentence the learned Recorder reduced the credit for the guilty pleas to one quarter rather than one third.  It follows that the sentence he passed of two years, nine months' imprisonment equates to a starting point of three years, eight months following a trial.  
22.	Even if sentence had been at large for the theft, we consider that the total sentence passed in this case was manifestly excessive.  Regard must be had to the Sentencing Guidelines Council's guideline on theft (December 2008), which includes guidance on theft from a shop.  The highest level of offending attracts a recommendation of 36 weeks to four years' custody, and a starting point of 12 months' custody where there is an organised gang/group and intimidation or the use or threat of force short of robbery.  The next level down suggests a range of up to 36 weeks' custody and a starting point of six weeks where there is significant intimidation or threats or use of force resulting in injury or very high level of planning or significant related damage.  These guidelines apply of course to a first‑time offender who has been convicted after a trial.  
23.	This offence, we think, probably fell within the lower band, although it is arguable that the use of the scissors and the threat of force at the point of apprehension put it in the upper band.  In either event, however, the offence was seriously aggravated by the appellant's bad record, as well as by the use of the scissors. 
24.	In the grounds of appeal, reference is made to the guideline case of R v Page [2005] Cr App R (S) 37, decided of course before the relevant Sentencing Guidelines Council's guideline was issued.  In summary, in that case this court suggested that a short custodial term of not more than a month might be appropriate for a defendant who persistently offended on a minor scale, and if that persistence also involved preparation of equipment to facilitate the offence, two months might be called for.  Even when a defendant had to be sentenced for a large number of offences, or where there was a history of persistent similar offending on a significant scale, proportionality would rarely require on a plea of guilty a total sentence of more than two years and would often merit no more than 12 to 18 months.  
25.	In R v O'Shea [2010] EWCA Crim 377, this court upheld a sentence of two years' imprisonment for a man with a very bad record for shoplifting, who pleaded guilty to three counts of theft and asked for four further thefts to be taken into consideration.  He stole clothes which he put on in changing booths, removing the security tags with pliers.  In one incident he knocked over a member of the public when he broke free from a security guard attempting to detain him.  The total value of property stolen was over £19,000.  The judge's starting point was three years after a trial.  The Court of Appeal accepted that the defendant was a professional thief of high value goods.  The offences were more serious than the Sentencing Guidelines Council's guideline because of the persistence of his shoplifting habit, despite the custodial and non‑custodial sentences he had received.  Two years was severe but not manifestly excessive.  From what we have said, plainly the theft in the present case was nowhere near as serious as O'Shea.  
26.	As to possession of the bladed article in a public place, we consider that the learned Recorder was correct to pass a consecutive sentence.  It was a separate piece of criminality and a severely aggravating feature of the offences.  Given his record for possession of bladed articles and offensive weapons, a sentence of nine months' imprisonment was by no means excessive.  
27.	The guidance given by this court in R v Povey [2009] 1 Cr App R (S) 42, whilst directed principally at knives and offensive weapons, applies equally to makeshift weapons such as this pair of kitchen scissors which, as the facts of this case demonstrate, can easily be produced in the heat of the moment and used as an offensive weapon, even if the purpose for which these scissors were being carried was to facilitate shoplifting.  
28.	Had the bladed article been a knife, a sentence of two years following a trial would have been fully justified.  Making allowance for the fact that it was a pair of scissors, a starting point of 18 months after a trial would have been appropriate.  If we were simply to reduce the sentence for theft to the maximum permitted by the committal provisions, namely six months' imprisonment, and were to leave the suspended sentence as it stands, namely nine months consecutive, we feel that the overall total of 15 months' imprisonment would be somewhat shorter than the appellant deserved.  The learned Recorder was right to emphasise the aggravating features of the offences, even though his overall sentence was too high.  
29.	We think that the appropriate sentence overall in this case was 18 months' imprisonment.  We shall therefore quash the sentence of two years for theft and substitute a sentence of six months' imprisonment.  It was a serious offence of its kind, aggravated by the value of the goods and the obvious planning and reconnoitring of the shop with another man, stealing as a team and going equipped with a pair of scissors.  No reduction from the maximum of six months was demanded because there was credit for the guilty plea in the fact of his being committed only under section 6 rather than section 3.  
30.	We shall also quash the sentence of nine months' imprisonment for having a bladed article in a public place and substitute a sentence of 12 months' imprisonment to run consecutively, making a total of 18 months.  
31.	To that extent the appeal is allowed.  The orders in respect of the suspended sentence and the drug offence remain unaltered.  
32.	LORD JUSTICE HOOPER:  I wish to add that this is another of a significant number of cases where an unlawful sentence is identified for the first time by a member of the staff of the Criminal Appeal Office.  We would like to stress on behalf of the court the role played by the Criminal Appeal Office in this area in particular.  But for that identification, it may well be that this appellant would have been serving and continue to be serving an unlawful sentence.