Sheppard, R. v

On breach of a suspended sentence order, Criminal Justice Act 2003, Schedule 12, paragraph 8 requires a two-stage approach. The court must first decide whether activation of a custodial sentence would be unjust in all the circumstances. If it would not, the court must then decide whether to activate the original term or a lesser term.

The offender’s compliance with community requirements is relevant at both stages. It does not, however, create an automatic entitlement to a reduction. Minor, delayed and intermittent compliance may properly leave the original custodial term unaltered, particularly where breaches are repeated.

The applicant had received a suspended sentence of 12 months’ imprisonment for drugs offences, with requirements including unpaid work, supervision and education, training and employment appointments.

After earlier breaches had been dealt with by additional requirements, he committed further breaches. The Crown Court at Cardiff activated the suspended sentence in its full, unaltered term on 17 January 2008.

On appeal, the applicant accepted that custody had become inevitable. He contended that his partial compliance required a reduction of the activated term. The central issue was whether part compliance with a suspended sentence order required credit when determining the length of the custodial term to be activated.

1. The appeal against sentence was dismissed. The court exercised the statutory discretion afresh because the sentencing judge’s remarks left some doubt whether he had approached the matter in two stages.
2. Under Part 2, paragraph 8 of Schedule 12 to the Criminal Justice Act 2003, breach requires a two-stage decision. First, the court must activate the suspended sentence, in its original or a modified form, unless activation would be unjust in all the circumstances. Compliance with the community requirements is relevant to that question.
3. Secondly, where activation is not unjust, the court must decide whether to activate the original custodial term or a lesser term. The statutory scheme permits either course even where there has been partial compliance. Compliance remains relevant at this stage, but its extent, promptness and quality determine its weight.
4. There is no principle that any compliance automatically earns credit by reducing the activated term. A substantial and prompt performance of requirements may support a lesser term. Here, however, the applicant’s compliance was delayed, intermittent and grudging, and he had repeatedly breached the order without explanation.
5. It was therefore not unjust to activate custody, and the limited compliance did not justify reducing the 12-month term. Effective enforcement of community and suspended sentence orders supported activation of the full original sentence in these circumstances.

• Court of Appeal (Criminal Division) — in [2008] EWCA Crim 799, dismissed the appeal against activation of the full suspended custodial term.
• Crown Court at Cardiff — on 17 January 2008, activated the applicant’s 12-month suspended sentence without alteration following further breaches. No lower-court citation was stated.