Welsh, R. v

When sentence has been deferred, the sentencing judge at the later hearing should decide whether the offender has substantially complied, or attempted to comply, with the proper expectations stated at the initial hearing. An immediate custodial sentence is not justified merely because an expected benefit has not materialised where the offender remained out of trouble and the failure resulted from events before the deferral and beyond the offender’s control.

The appellant admitted burglary before the Magistrates’ Court and asked for three further offences to be taken into consideration. He was committed to the Crown Court for sentence.

At Southwark Crown Court, the judge deferred sentence to allow the appellant to continue his university course, subject to his staying out of trouble and producing evidence of continued study. Before the deferred hearing, the appellant was convicted in Scotland of an assault committed before sentence was deferred and was expelled from the university. The Crown Court imposed 18 months’ immediate imprisonment.

The appeal concerned whether the appellant’s inability to continue his studies justified departing from the expectation created when sentence was deferred.

1. Appeal allowed. The court substituted a sentence of 52 weeks’ imprisonment, suspended for 12 months from 30 July 2008, for the 18-month immediate custodial sentence.

2. At a deferred sentencing hearing, the judge should assess whether the offender has substantially complied, or tried to comply, with the proper expectations expressed at the initial hearing. The relevant question is whether the offender was at fault for any failure to fulfil those expectations.

3. The appellant had stayed out of trouble during the period of deferral. There was no evidence that he had done, or failed to do, anything during that period which reasonably affected the continuation of his studies. His expulsion resulted from conduct in 2006, before the sentence was deferred, and was therefore beyond his choosing or control. The sentencing judge erred by imposing immediate custody on the basis that the studies had ended.

4. Under sections 189 and 190 of the Criminal Justice Act 2003, a requirement had to accompany the suspended sentence order. The court initially imposed a 28-day residence requirement, but the amendment to paragraph 13 removed that requirement and substituted an exclusion order.

• Court of Appeal (Criminal Division): Allowed the sentence appeal in [2009] EWCA Crim 945 and substituted a suspended sentence order.
• Crown Court at Southwark: After deferring sentence in February 2008, His Honour Judge Rivlin QC imposed 18 months’ immediate imprisonment on 30 July 2008.
• Magistrates’ Court: The appellant admitted burglary and was committed to the Crown Court for sentence.