For anyone who wants to look at the funny side of the criminal law, Dappy from N-Dubz is the gift that keeps on giving. He has the capacity to get into trouble whilst looking like an idiot and I have him down as a potential successor to Brian Harvey (of East 17 fame) in the role of national clown (although he hasn’t done anything nearly as monumental as the jacket potato moment).
Anyway, last October he punched a clubber at the Evissa nightclub in Reading, for which he was convicted earlier this year (we note in parentheses that in June this year he was convicted of an offence of Common Assault committed in February and fined).
The District Judge decided to ‘commit for sentence’ due to the fact that this had occurred during a 6 month suspended sentence that had been imposed by Reading Crown Court for Affray and Common Assault was imposed for a fight in February 2012 (details here) and the Crown Court should have had the opportunity to see whether any of that sentence should be ‘activated’ – i.e. he should be directed to serve a prison sentence for that offence as well as this new one.
The offence that gave rise to the Suspended Sentence that was not activated occurred on
As you can tell from the headline, Dappy (real name Costadinos Contostavlos) is not behind bars. On 6th November 2014 the Judge decided to give him another chance.
Probably because this offence had occurred almost as the suspended sentence expired, the Judge did not activate any of it and gave Dappy a 2 month prison sentence, suspended for 12 months with a “four-month curfew to be at home between 22:00 and 05:00. He was also ordered to attend a Thinking Skills Programme, which addresses the way offenders think and their behaviour associated with offending.”
He was directed to pay £1,200 prosecution costs, an £800 fine, £800 in compensation to his nightclub victim and a statutory surcharge of £80 (more on that later).
Looking at the guidelines for assault (see page 23) it doesn’t really fit in with any of them (as is often the case), but it’s probably a Category 2 case, which would indicate a Community Order. Here, as there are previous matters and he was on a suspended sentence, the Judge was entitled to increase the severity of the punishment to a suspended sentence. For that reason, there won’t be an appeal. In fact, Dappy can consider himself lucky.
Why was there a Victim Surcharge?
It’s a messy area of the law.
Here, Dappy was being sentenced for the Common Assault that occurred after 1st October 2012. So far so good. He was committed for sentence under Para 8, Schedule 12 Criminal Justice Act 2003 which means that the Crown Court Judge could deal with the breach as well as sentence Dappy for this offence. He has to abide by the sentencing powers of the Magistrates’ Court (for obvious reasons).
Had he sent Dappy to prison then, because the offence occurred before 1st September 2014, the surcharge could not be imposed. As the sentence was suspended, that is not the case, so there is no bar there.
However, the offence for which the Suspended Sentence was imposed by the Crown Court occurred on 27th February 2012, so before the ‘new’ Victim Surcharge regime. By virtue of para 7(2) The Criminal Justice Act 2003 (Surcharge) Order 2012 (2012/1696, “where … a court deals with a person for … more than one offence, at least one of which was committed before 1st October 2012” the surcharge does not apply, unless there is a fine for the pre 2012 offence.
Here, the news reports indicate that the fine was for the ‘new’ Common Assault, so the question would be whether the Crown Court ‘dealt with’ Dappy for the Suspended Sentence – does considering a suspended sentence and deciding not to activate it constitute as ‘dealing with’?
The short answer is that I don’t know. My gut reaction is that it does or, at least, if there is a doubt as to whether it applies, the benefit of the doubt should go to the defendant. For that reason, I think that the surcharge should not have been imposed.
If, as we think is likely, the £800 fine was for the breach of the Suspended Sentence, then he has certainly been ‘dealt with’ and the surcharge was wrongly imposed.
Dappy is not short of a bob or two, and I doubt he’ll be complaining. It just goes to show how (needlessly) complicated sentencing law is.
Just to note here, the Surcharge for a fine of £800 would be £80, being 10% of the fine, which is the same as the surcharge for a Suspended Sentence.