Barrett, R v

A suspended custodial sentence is wrong in principle where, because the offender has already spent sufficient time on remand, it has a more severe practical effect than the maximum immediate custodial sentence available. The protective and supervisory advantages of suspension cannot justify that result.

On an appeal against sentence, Criminal Appeal Act 1968 section 11(3) prevents the appellate court from replacing a suspended sentence with immediate custody if that would deal with the offender more severely. A conditional discharge, with a term adjusted to avoid additional punishment, may instead be substituted.

The appellant pleaded guilty at Nottingham Crown Court to threatening behaviour, three offences of criminal damage, and assaulting a police officer. The assault charge had been committed to the Crown Court under section 41 of the Criminal Justice Act 1988.

Although the total available immediate custodial sentence was six months, the appellant had spent almost four months in custody on remand. The sentencing judge imposed an aggregate of 12 weeks’ imprisonment, suspended for 12 months, with a 12-month supervision requirement.

The appellant appealed with leave of the single judge. The central issue was whether a suspended sentence could properly be imposed when immediate custody, even at the maximum available term, would have resulted in his immediate release.

1. Appeal allowed. The suspended sentences were wrong in principle. They were set aside and replaced by conditional discharges for four months on each count.

2. The judge’s aim of protecting the public and providing probation support was understandable. However, the appellant had already spent almost four months on remand. The statutory maxima meant that even the maximum immediate custodial sentences would have led to his immediate release. The suspended sentences therefore imposed a more severe practical burden than the maximum immediate custodial penalty.

3. The court followed the approach in Hemmings [2008] 1 Cr.App.R (S) 106. A community order, particularly one with liberty-restricting requirements, is punishment. It is wrong in principle to impose substantial further punishment after remand custody has in practice exhausted the maximum imprisonment available. The authorities of McCabe and Peppard, which deprecated equivalent suspended sentences, were directly applicable.

4. Section 11(3) of the Criminal Appeal Act 1968 required the court to ensure that the appellant was not dealt with more severely on appeal. Immediate imprisonment could not replace the suspended sentences, since an ordinary person would regard that as more severe. Consistently with McCabe, Peppard, and Hemmings, the appropriate substitute was a conditional discharge. A four-month term avoided any additional practical punishment.

• Court of Appeal (Criminal Division) — allowed the appeal, set aside the suspended custodial sentences, and substituted conditional discharges for four months: [2010] EWCA Crim 365.
• Nottingham Crown Court — on 2 October 2009 imposed an aggregate sentence of 12 weeks’ imprisonment, suspended for 12 months, with a supervision requirement for 12 months.