Mukendi, R. v

Where an offender has spent time in custody before receiving a suspended sentence, the sentencer must allow for that custody when fixing the suspended term. If the sentence is later activated, the earlier remand time will not count towards it. A suspended term which would therefore require further custody beyond a proportionate custodial sentence is unjustified. The court may instead impose an appropriate community order with requirements addressing the offender’s needs.

The appellant pleaded guilty at the Crown Court at Inner London to theft of a motor vehicle. He had spent three months on remand before sentence, equivalent to six months’ imprisonment, and had mental-health difficulties.

The Crown Court imposed 30 weeks’ imprisonment suspended for 18 months, with supervision and mental-health treatment requirements. The appellant appealed against sentence with leave of the single judge. The central issue was whether the suspended term properly allowed for the time already spent in custody.

1. Appeal allowed. The suspended sentence order was quashed and replaced with an 18-month community order containing a mental-health requirement for the same period.

2. Time spent in custody before a suspended sentence must be reflected in the length of the suspended term. That is because the remand period will not count towards the term if it is later activated. The court applied the established sentencing principle supported by R v Williams [1989] 11 Cr App R 152 and R v Tucker [1992] Cr App R (S) 15.

3. The appellant’s remand period was equivalent to a six-month custodial sentence. Having regard to the theft guidance, the circumstances of the offence and the appellant’s mental health, a custodial sentence significantly exceeding six months could not be justified. If the suspended sentence were activated, he would serve a further 15 weeks in custody. That further custody would be unjustified.

4. An 18-month community order with a mental-health requirement could properly have been imposed. It was therefore substituted for the suspended sentence.

• Court of Appeal (Criminal Division): Allowed the sentence appeal in [2010] EWCA Crim 280 , quashed the suspended sentence order and substituted a community order.

• Crown Court at Inner London: On 6 October 2009, imposed 30 weeks’ imprisonment suspended for 18 months, with supervision and mental-health treatment requirements, following a guilty plea to theft.