Lynch, R. v

A conditional discharge is inappropriate where its potential for further punishment would expose an offender to punishment for the original offence beyond the maximum sentence which could lawfully have been imposed at the outset. Time already spent on remand is material to that assessment.

On an offender-only appeal, the Court of Appeal cannot substitute a sentence more severe than that imposed below. Where the lawful and proportionate custodial sentence has effectively already been served, and a conditional discharge cannot stand, an absolute discharge may be the only available disposal.

The appellant pleaded guilty in the Crown Court at Birmingham to common assault after the prosecution accepted that plea when a witness did not attend trial. He had spent five months and 22 days in custody on remand. The maximum sentence for common assault was six months’ imprisonment.

The sentencing judge imposed a two-year conditional discharge to retain some control over an appellant with a substantial history of violent offending. The appellant appealed against sentence, contending that the order exposed him to further punishment for an offence for which he had already served custody greatly exceeding the statutory maximum.

1. Appeal allowed. The two-year conditional discharge was set aside and replaced with an absolute discharge.

2. The court accepted that the sentencing judge had a proper and understandable wish to retain control over an offender who presented a high risk of further violence. That objective could not justify a conditional discharge which exposed him, upon reoffending, to further punishment for the common assault.

3. By sentence, the appellant had spent five months and 22 days on remand. That was the equivalent of a substantive custodial sentence of nearly 12 months, whereas the maximum sentence for common assault was six months. Further punishment under the conditional discharge would therefore be inappropriate because the punishment already experienced greatly exceeded the maximum sentence available at the outset.

4. The court would otherwise have imposed a sentence of about five months’ imprisonment, allowing for the guilty plea but reflecting the appellant’s record. It could not do so because an appellate court may not impose a sentence more severe than the sentence imposed by the original sentencing court. An absolute discharge was accordingly the only available course.

• Court of Appeal (Criminal Division): By [2007] EWCA Crim 2624, allowed the appeal against sentence, set aside the two-year conditional discharge imposed below, and substituted an absolute discharge.

• Crown Court at Birmingham: Following a guilty plea to common assault, imposed a two-year conditional discharge.