Neutral Citation Number: [2008] EWCA Crim 474
 
No: 200800458/A7 
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
Strand
London, WC2A 2LL

Date: Monday, 25th February 2008

B e f o r e:

LORD JUSTICE THOMAS 

MR JUSTICE IRWIN 
 
MR JUSTICE COULSON 
- - - - - - - - - - - - - - - - - - - - -
R E G I N A 

v 

SAMUEL ROBERT LAWLOR 
 
- - - - - - - - - - - - - - - - - - - - -
Computer Aided Transcript of the Stenograph Notes of  
WordWave International Limited
A Merrill Communications Company 
190 Fleet Street  London EC4A 2AG
Tel No: 020 7404 1400 Fax No: 020 7831 8838
(Official Shorthand Writers to the Court)
- - - - - - - - - - - - - - - - - - - - -
Mr G Pottinger appeared on behalf of the Applicant 
- - - - - - - - - - - - - - - - - - - - -
J U D G M E N T 

1.	Mr Justice Irwin: On 13th February 2007, in the Crown Court at Birmingham, before Mr Recorder Tickle, this applicant pleaded guilty to inflicting grievous bodily harm.  On 30th March 2007 he was sentenced for that offence by Mr Recorder Lopez to 18 months' detention in a young offenders institution, suspended for two years, with an unpaid work requirement for 200 hours pursuant to section 199 of the Criminal Justice Act 2003.  He was ordered to make a considerable payment towards prosecution costs and to make a more modest payment in compensation.  A further count on that indictment was ordered to remain on the file on the usual terms.
2.	The present proceedings arise in the form of an application for an extension of time of 263 days for leave to appeal and for leave to appeal against sentence.  The application has been referred to this court by the registrar who has granted, properly, a representation order for counsel here today.
3.	The facts can be summarised as follows.  At approximately 8.00 p.m. on 28th September 2006 the complainant, Mr Cleaver, was with his girlfriend on Trittiford Road in Moseley in Birmingham.  They had an argument as they walked along.  The applicant was on the other side of the road.  He approached them as he crossed the road to their side.  He walked straight up to the complainant and punched him to the face without any warning.  The complainant fell to the floor.  The applicant then walked off, but said something rather aggressive to the lady as he did so.  Whilst he was on the ground the complainant slipped into unconsciousness as he bled heavily from his mouth.  Another witness described how the complainant at that stage appeared to him to be choking on his own blood.  The complainant was taken to hospital where he was operated on for a broken jaw.  It had been broken on both sides.
4.	When he was arrested and interviewed, on 5th October 2006, this applicant claimed that he thought the complainant was pulling a knife on him and that was why he had reacted as he did.
5.	It was noted when the original recorder ordered the preparation of a pre‑sentence report he had indicated he would impose a non‑custodial sentence if the risk of reconviction was low.  That was a very generous approach to take.  We would wish to emphasise again that when ordering the preparation of such reports it is not usually sensible to give indications of that kind.  Of course non‑custodial sentences must be in contemplation when a matter is adjourned so that the report can be prepared in a case of this kind.  It is not normally wise to give a positive indication that there will be a non‑custodial disposal which can subsequently be taken as a promise.  In any event, in this case this was an over‑generous indication, given the facts of the case.
6.	However, when the second recorder, Mr Recorder Lopez, came to sentence this appellant, he took the view that he should honour the indication that had been given, because the pre‑sentence report, as it turns out wrongly, indicated that there was a low risk of re‑offending in the case of this applicant.  So, as a consequence, the sentence we have indicated was passed by Mr Recorder Lopez, who told the applicant that he should be extremely careful with his temper as he had caused serious injury and was lucky that he had not caused even more damage.  Mr Recorder Lopez rightly said that this offence clearly crossed the custody threshold but he gave the sentence of 18 months, suspended for two years with an unpaid work requirement, as we have outlined.
7.	This was a generous sentence given the nature of the assault, even despite the applicant's previous lack of convictions, his plea and his then assessed low risk of re‑offending.  However, that was a optimistic prognostication.  The applicant has committed a further offence of a similar nature, for which he now awaits sentence. It was as a result of that arrest that counsel, looking at the applicant's record, realised that there is a problem in the suspension of an 18 month period of detention.  We commend the vigilance of counsel.  The problem is that the court has no power to suspend a sentence which is longer than 12 months: see section 189 of the Criminal Justice Act 2003.  Thus, the recorder's sentence was illegal.
8.	The applicant is granted an extension of time of 263 days, is granted leave to appeal and the sentence is quashed.  The powers of this court are constrained by section 11(3) of the Criminal Appeal Act 1968, with the effect that the appellant cannot be dealt with more severely on appeal than the overall effect of the sentence received below.  Therefore, we substitute a 12 month sentence of detention in a young offender institution, suspended for two years, for that passed by the recorder.