Law Report: Sentencing guidelines on new legislation: Regina v Bexley, Summers and Harrison - Court of Appeal (Criminal Division)(Lord Taylor of Gosforth Chief Justice, Mr Justice Potts and Mr Justice Judge), 30 November 1992

Under section 29 of the Criminal Justice Act 1991 a sentencer cannot regard the mere existence of previous convictions as relevant to the seriousness of the offence before the court or its combination with one other offence, but he could take account, in deciding the seriousness, circumstances of previous offences or of other offences before the court which disclosed some aggravating factor.

The Court of Appeal gave guidance on the construction of section 29 of the Criminal Justice Act 1991.

Section 29 provides: '(1) An offence shall not be regarded as more serious. . .by reason of any previous convictions of the offender or any failure of his to respond to previous sentences. (2) Where any aggravating factors of an offence are disclosed by the circumstances of other offences committed by the offender, nothing. . .shall prevent the court from taking those factors into account for the purpose of forming an opinion as to the seriousness of the offence.'

Andrew F Jackson, David Bennett, Kathryn Johnson (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 how the subsections related to one another had been the subject of much controversy. It had even suggested that subsection (2) was in conflict with subsection (1). However Parliament must have intended that two subsections to be complementary.

Subsection (1) prohibited the sentencing court from regarding an offence as more serious simply because the offender had previous convictions. That prohibition applied whether the previous convictions were for different classes of offence or even for the same class of offence as that before the court.

It embodied the principle, established in case law before the 1991 Act, that an offender who had been punished for offences committed in the past should not in effect be punished for them again when being sentences for a fresh offence. But section 29(1) went further.

The criterion for deciding whether only a custodial sentence could be justified was the seriousness of the offence or its combination with one other. Under section 2(2)(a) the length of a custodial sentence must be commensurate with the seriousness of the offence or its combination with one other. So the sentencer must focus attention on the seriousness of that offence or that combination.

The approach commonly adopted before the Act of regarding the instant offence as more serious and deserving of custody because it repeated previous offending which had been treated more leniently was forbidden. The second limb of section 29(1) provided that the failure of the offender to respond to previous sentences was not to be regarded as rendering the instant offence more serious.

Familiar sentencing remarks before the Act such as 'You have a long history of committing offences of this kind' or 'You have been given every chance, fines, probation, community service, and here you are again' would no longer be appropriate. They would be statutorily irrelevant as indicators of seriousness in the instant offence.

Whereas section 29(1) referred to 'previous convictions', by contrast subsection (2) referred to 'the circumstances of other offences'. Therefore a sentence could not regard the mere existence of previous convictions as relevant to the seriousness of the instant offence A, or its combination with one other offence B, but he could take into account on that issue the circumstances of previous offences or of other offences before the court.

Only circumstances which disclosed some aggravating factor in offence A or offence B could be taken into account. The sentencer must concentrate his attention on A or A and B. Keeping that offence or combination in the forefront of his mind, he might properly ask himself whether there wee any circumstances of other ofences committed by the offender which shed light on offence A or B, so as to disclose some aggravating factor in either.

If an aggravating factor was revealed by such circumstances, the sentencer was entitled to weigh it in deciding the seriousness of either A or A and B. Relevant circumstances would usually be those which bore on the offender's guilty mind. They might show an aggravating element of planning, deliberation or selection, or disclose some added gravity of criminal purpose.

For example, if the offence was house burglary by night, the mere fact that the offender had six previous convicions for house burglary by night would not make the offence more serious, although it could rebut a mitigation on behalf of the offender that his offence was a one-off piece of opportunism. However, if the burglary was at the home of an 80-year old widow, the fact that the previous offences were also burglaries of elderly widows would be a circumstances disclosing an aggravating factor - that the offender had deliberately targeted or selected an elderly victim.

Taking an offence of stealing a credit card, the motive might be to use it to acquire modest necessaries for an indigent family. In such a case even coupling the acquisition of the card with one instance of its use would probably not justify a custodial sentence.

However in a case in which the offender asked for many other offences to be considered of suing the card to acquire large amounts of luxury goods, the court would be entitled to look at the circumstances of the other offences as disclosing the motive for stealing the card, and the gravity of the offence and might conclude section 1(2)(a) applied.

Ying Hui Tan, Barrister