Three strikes and the minimum sentence
Three strikes and the minimum sentence
- The Defence applied successfully for the sentence imposed in the above to be varied pursuant to section 155 of the Powers of Criminal Courts (Sentencing) Act 2000 (PCCSA).
- The application concerns the offence of burglary , committed in September 2020, and the appropriate reduction as credit for a guilty plea.
- The Defendant indicated at the first opportunity at the Magistrates’ Court that he would enter a plea of guilty to the offence. That indication was recorded on the ‘Better Case Management’ form and the hearing represented the first occasion on which an indication of plea was sought by the court.
- As the offence fell within the remit of the ‘third strike’ rule under section 111 PCCSA, it was treated as indictable only (section 111(4)PCCSA) and therefore duly sent for PTPH.
- The prosecution note on sentencing addressed the provisions under section 111(2) and (4) of the PCCSA. It correctly sets out that the maximum reduction that can be afforded for a guilty plea, where the mandatory minimum of three years’ custody applies, is 20% (section 144(2) of the Criminal Justice Act 2003). In accordance with the above section, no sentence less than 876 days’ imprisonment may be imposed where the minimum applies.
- Notwithstanding, the prosecution note on sentence goes on to state that should a sentence in excess of three years’ custody be arrived at, ‘credit of up to 25% can be deducted.’
- It was respectfully submitted this is not correct. As indicated in the defence note on sentencing , credit of up to one-third can properly be awarded, provided such a reduction does not transgress a sentence of 876 days’ imprisonment.
- This principle was confirmed in R v Gray  2 Cr App R (S) 78: 10. In the circumstances, the learned Registrar referred this matter directly to this court so a ruling could be made. It is clear to us that the submission that has been made, very attractively and shortly in submissions to us and very briefly in oral argument by Mr Hamilton, is well founded. It is, in our judgment, clear that subsection (2) of section 144 prevents a court from imposing a sentence which would be less than 80 per cent of the sentence specified in section 110(2) of the Powers of Criminal Courts (Sentencing) Act or less than 80 per cent of three years in the case of section 111(2) . Provided the sentence is greater than that amount, then a court is entitled to apply the provisions of section 144(1) in the way it thinks appropriate. In this case, the judge considered that a discount of 30 per cent was appropriate.
Therefore, there was nothing to prevent him, once he had taken the starting point of five years, to have given a discount of 30 per cent applied to that period.
- It is conceded that the above point was not explicitly addressed in oral submissions made by defence counsel at the sentencing hearing in November 2020.
- The Defendant was sentenced by His Honour Judge P to 3 years’ custody (Burglary) ii. 6 months’ custody, consecutive (Assault of an Emergency Worker) iii. £120 VS.
- No issue is taken with the sentence imposed in respect of the assault offence, or with the starting point of 4 years’ custody for the burglary offence.
- Notwithstanding, the Defendant indicated a guilty plea at the first available opportunity to the burglary offence. In accordance with section 144 of the Criminal Justice Act 2003 and the ‘Reduction in Sentence for a Guilty Plea’ Definitive Guideline (Appendix 3), it is respectfully submitted that a reduction of one-third ought to have been made.
- From the learned judge’s sentencing remarks, the parameters within section 111 PCCSA were cited and an explicit reduction of 25% was made from a starting point of 4 years’ custody. It is understood the judge acceded to the submissions made on behalf of the Crown as to the maximum credit available and ostensible fetters on sentencing powers. In contrast, a reduction of 33.3% was made in respect of the assault offence, when a guilty plea was indicated on the same occasion by the Defendant.
- Significantly, with a starting point of 4 years’ custody a reduction of one-third would not result in a sentence below the statutory minimum of 876 days’ imprisonment. Rounded up, a sentence of 974 days’ imprisonment would be arrived at. It was therefore respectfully submitted that the Defendant should have received such a sentence for the burglary offence, rather than a sentence of three years’ custody (1095 days’ imprisonment).
- The sentence was adjusted under the slip rule and unopposed by the Crown Prosecution Service