R v Kelly (Michael)

Date

1 May 1995

Legislation

Criminal Justice Act 1991 ss1, 29, 31

Keywords

criminal offences; sentencing; custodial threshold; personal circumstances

Counsel

AH Munday for Kelly

Solicitors:

unknown

Judge:

Pill LJ, Laws, Buckley JJ

Court:

Court of Appeal (Criminal Division)

Reported:

[1996] 1 Cr App R (S) 61

Summary:

Kelly pleaded guilty at the Croydon Crown Court on February 15, 1995 upon re-arraignment to four counts of the fraudulent use of a trademark. He was sentenced to six months' imprisonment on each count and ordered to pay £1,500 towards the costs of the prosecution. There was a fifth count on the indictment charging a like offence; it related to pirated videos but was ordered to lie on the file.

Police officers in possession of a search warrant went to Kelly's home at 7.35 a.m. on February 12, 1994 and carried out a search. They found 30 watches bearing false trademarks of well-known brands: Rolex, Gucci and Tag Heuer. The counts on the indictment were specimen counts.

Kelly was 51 years old and had a criminal record for offences of dishonesty including an offence very similar to those with which he fell to be dealt in this case. It was submitted on his behalf by Mr Munday that the offences for which he fell to be sentenced did not pass the custody threshold. The Court of Appeal did not agree and noted that whether or not an isolated instance of an offence of this kind might, in principle, fall short of the custody threshold is not something which for the purposes of this appeal they needed to decide. The fact in this case was that there was a marked element of persistence in Kelly's criminal dishonest conduct. Mr Munday for Kelly submitted that it was only possible to sentence on the basis of the four counts stricto sensu and not take account of the other watches that were found but not charged.

Decision:

The Court of Appeal decided that it was unnecessary to deal with this point because this case passed the custody threshold, even assuming that one was dealing with the four counts stricto sensu together with this man's previous convictions.

The Court did, however, reduce Kelly's sentence noting that 6 months imprisonment on each count was excessive. The right sentence on all the facts would have been one of three months, and concurrent sentences of three months' imprisonment were thus substituted for the sentences of six months, which were quashed. To that extent the appeal succeeded.