Nobbs v Director of Public Prosecutions

When an offender commits a further offence during the operational period of a suspended sentence, the court must activate the sentence unless activation would be unjust in all the circumstances. Relevant considerations include compliance with any supervision order, the facts of the later offence, the offender’s history and the time remaining in the operational period. The ordinary sentencing guideline for the later offence does not determine whether activation is justified. A sentence may be severe yet lawful if the court considers the statutory requirements, excludes irrelevant matters and reaches a decision reasonably open to it. Guidance concerning custody for a standalone offence does not necessarily govern sentencing where the offence is committed during a suspended sentence.

The appellant appealed by way of case stated against the dismissal by Grimsby Crown Court of his appeal against sentences imposed by North Lincolnshire Magistrates’ Court. The magistrates activated two suspended sentences imposed for earlier offending and imposed a consecutive term of one month’s imprisonment for driving with excess alcohol, together with a driving disqualification.

The appellant argued that activation was unlawful or Wednesbury unreasonable, that the sentencing court had departed from applicable guidelines, and that activation should not have been considered before determining whether the later offences warranted a conviction capable of triggering activation.

1. Appeal dismissed. The Crown Court had to determine the appropriate sentence afresh, but its wording did not show that it had merely reviewed the magistrates’ sentence. Nor had it treated the appellant’s taking of his father’s car as an independent aggravating factor.
2. Paragraph 8 of Schedule 12 to the Criminal Justice Act 2003 required activation of the suspended sentence, with the original or a reduced term, unless the court considered activation unjust in all the circumstances. Those circumstances expressly included compliance with the supervision order and the facts of the subsequent offence.
3. The Crown Court properly considered the appellant’s previous alcohol-related and other offending, his history of non-compliance with community sentences, his limited engagement with the supervision order, the nature of the later offence and the fact that more than half the operational period remained. These matters justified the conclusion that activation would not be unjust.
4. The Sentencing Guidelines Council guideline did not say that activation was inappropriate whenever the new offence did not itself warrant custody. Paragraph 2.2.22 required consideration of whether activation was appropriate where the new offence was not imprisonable. The offence here was imprisonable. Paragraph 2.2.19, concerning an offence committed near the end of the operational period, did not assist the appellant.
5. The Magistrates Association guidance, approved as a starting point in Shoult [1996] RTR 298, concerned custody for the excess-alcohol offence considered alone. It did not purport to govern the sentence where that offence was committed during the operational period of a suspended sentence.
6. The court rejected the challenge that relevant factors had been ignored, irrelevant factors considered, or an unreasonable decision reached. It therefore answered the first stated question in the negative and declined to answer the second question.

• High Court (Administrative Court): dismissed the appeal by way of case stated from the dismissal of the appellant’s sentencing appeal by Grimsby Crown Court.
• Grimsby Crown Court: dismissed the appellant’s appeal against the sentences imposed by North Lincolnshire Magistrates’ Court on 31 October 2007.
• North Lincolnshire Magistrates’ Court: activated the suspended sentences and imposed one month’s consecutive imprisonment for driving with excess alcohol, together with a 12-month driving disqualification.