Ball, R. v

In an exceptional and probably unique sentencing case, the Court of Appeal may allow an appeal as an act of mercy and substitute a community order for a suspended custodial sentence. The court may do so although the original sentence was not necessarily wrong in principle, where unusually powerful personal mitigation makes custody inappropriate and the necessary rehabilitative requirements can be retained.

The appellant pleaded guilty in the Crown Court at Kingston-upon-Thames to causing danger to road users by interfering with traffic equipment. While affected by alcohol and prescribed sleeping medication, he removed road-closure cones and signs, allowing vehicles onto a closed road where repairs had begun.

He was a police officer of good character who suffered chronic pain, depression and alcohol problems following injuries sustained in service. Psychiatric evidence led him to abandon a possible automatism defence. He was sentenced to four months’ imprisonment, suspended for two years, with mental-health treatment and supervision requirements.

His appeal challenged only the suspended custodial element. The central issue was whether a non-custodial disposal was appropriate in the highly unusual circumstances.

1. Appeal allowed. The court quashed the four-month suspended sentence of imprisonment and substituted a community order containing a two-year supervision requirement and a mental-health treatment requirement in the same terms as the original order.

2. The offending created a serious risk. Removing the road closure exposed road users and maintenance staff to potentially disastrous consequences, and traffic had already become trapped. That seriousness made the sentencing judge’s approach understandable.

3. Nevertheless, the case carried exceptional mitigation. The appellant was of good character, had an excellent record of police service, suffered chronic pain and depression following service injuries, and required help for depression, pain and alcohol problems. The evidence also showed the material effect of alcohol and sleeping medication. He was remorseful, presented a low risk of harm, and was unlikely to reoffend.

4. The court was not sure that the sentencing judge had been wrong in principle. It nonetheless exercised mercy in circumstances described as probably unique. The appropriate response was therefore rehabilitative community requirements, without the suspended term of imprisonment.

• Court of Appeal (Criminal Division): allowed the sentence appeal and replaced the suspended custodial sentence with a community order.
• Crown Court at Kingston-upon-Thames: following a guilty plea, imposed four months’ imprisonment suspended for two years, with mental-health treatment and supervision requirements.