Regina v Button
(1994) The Times 21 October.Court of Appeal
This case concerns Section 12A of the Theft Act 1968, as inserted by the Aggravated Vehicle-Taking Act 1992, which created two offences of aggravated vehicle taking: one with a maximum penalty of two years imprisonment and a second more serious one where, viz; if, owing to the driving of the vehicle an accident occurred causing death to any person, the maximum penalty was five years; and it was essential that the indictment made it clear which offence was being charged.
The Court of Appeal, Criminal Division, allowed an appeal by Nigel John Button against a sentence of three years imprisonment on a plea of guilty to an offence of aggravated taking of a vehicle contrary to section 12A, as inserted. He pleaded guilty to another similar offence and was sentenced to 18 months consecutive imprisonment, making a total of four and a half years.
LORD JUSTICE GLIDEWELL, giving the judgment of the court, said that the appeal had no merit but raised a pure point of law as to whether the judge was empowered to pass the sentence he did. The appellant was the front seat passenger in a stolen car which was driven at speeds between 60 and 80 mph in a 30 mph limit and which knocked down and killed a girl of 13. The appellant pleaded guilty to the aggravated taking of a vehicle and was sentenced to three years imprisonment He appealed against that sentence on the ground that the judge was not empowered to pass such a sentence in view of the particulars of the offence as set out in the indictment which read: ".. after the vehicle was taken and before it was recovered the vehicle was driven dangerously on a road namely Pelsall Lane, Rushall".
By section 12A(4) of the 1968 Act the maximum penalty for an offence under section 12A(1) was two years, unless the circumstances came within section 12A(2)(b): "that, owing to the driving of the vehicle, an accident occurred by which injury was caused to any person"; and the accident caused the death of the person concerned, when the maximum penalty was five years.
The court agreed that the reasoning adopted by the House of Lords in R v Courtie ([1984] AC 463) applied. In that case the House of Lords held that buggery with a male aged 19 with his consent was a different offence from buggery with the same person without his consent, the second offence carrying the higher maximum penalty. Similarly section 12A created two offences: one with a maximum penalty of two years and a more serious one, if the facts under section 12A(2)(b) were proved and death resulted, where the maximum was five years. It was not sufficient to follow the course adopted by the Crown Court that under the circumstances the facts necessary to establish the offence had been proved.
It was essential that the indictment set out in very short form the facts which constituted the necessary ingredients of the offence.
In view of the offence actually charged it was not open to the judge to pass the sentence of three years, even though it was richly deserved. The sentence would be reduced to two years but would continue to run consecutively to the sentence of 18 months imposed for another offence of aggravated vehicle taking on a different occasion, making a total of three and half years in all.
Comment
The Aggravated Vehicle-Taking Act 1992, came into force as a result of the Aggravated Vehicle-Taking Act, Commencement Order 1992 (S.I. 1992 No.764).
The Aggravated Vehicle-Taking Act added a new s.12A to deal with offenders, who, after taking the vehicle drive dangerously and cause injury or damage. The offence is triable either way unless the only aggravated event is damage below a specified sum. The maximum penalty on indictment is increased to 2 years; still a year less that the original Theft Act 1968 (Three years). The intention is to increase the punishment to five years if death is caused
It is questionable whether the Act is having the desired effect. S12A was primarily aimed at young offenders, among whom such activity has become prevalent (a survey in Newcastle-Upon-Tyne showed that the Joyrider emerges as a male teenager with a disrupted family background where there is unemployment. He has little academic ability and a record of truancy, (1992) The Times 24 September. See also R v Bird (1993) 157 JP 488; [1993] Crim. L.R. 85