Levesconte v Regina

Where a suspended sentence is activated in full because a further offence was committed during its operational period, that fact must not also aggravate the sentence for the further offence. Doing so gives the same circumstance weight in relation to two offences and increases punishment for it beyond the sentence originally at risk.

The position may differ where the suspended sentence is not activated in full. A sentencing judge may, however, treat a recent repetition of the same type of offence as a separate aggravating factor where it was not already included in the assessment of the offender’s antecedents.

The applicant had received a nine-month suspended sentence for dwelling burglary and criminal damage at Bournemouth Crown Court. Less than two months later, during its operational period, he committed a further dwelling burglary with a co-accused in sheltered accommodation occupied by an elderly woman.

He pleaded guilty. The Recorder imposed 16 months’ imprisonment for the further burglary and activated the earlier nine-month sentence in full and consecutively, producing 25 months’ imprisonment. The applicant challenged the increase in the second sentence from an 18-month starting point to 24 months, contending that the Recorder had double-counted aggravating factors.

1. Appeal allowed to the extent of varying the sentence. The court substituted 12 months’ imprisonment for the 16-month sentence imposed for the second burglary. The fully activated nine-month suspended sentence remained consecutive. The total sentence was therefore reduced from 25 months to 21 months.

2. The Recorder had not double-counted the fact that the applicant had recently repeated an offence of burglary. His initial reference to the defendants’ backgrounds concerned their poor antecedents, which were common to both. The later reference to the applicant’s recent repetition of burglary was a distinct factor applicable to him alone. Although that factor would have had little independent effect, it was capable of aggravating sentence.

3. It was, however, impermissible to aggravate the sentence for the second burglary because it was committed during the operational period of the suspended sentence when that suspended sentence was activated in full. Criminal Justice Act 2003, section 143 did not resolve the point. The decisive consideration was that full activation had already dealt with the applicant for that very circumstance. Giving it further weight when sentencing the new offence imposed punishment referable to the same fact beyond the maximum sentence for which he had originally been at risk.

4. The court left open whether the same conclusion would follow where a suspended sentence was not activated in full. Although a 24-month starting point could have been justified by the seriousness of the burglary, the Recorder had selected an 18-month starting point and increased it for an invalid reason. Justice therefore required a sentence based on the 18-month starting point, reduced for the guilty plea.

• Court of Appeal (Criminal Division): Allowed the sentence appeal and substituted 12 months’ imprisonment for the second burglary, leaving the fully activated consecutive nine-month suspended sentence in place.

• Bournemouth Crown Court: The Recorder imposed 16 months’ imprisonment for the second burglary and activated a nine-month suspended sentence in full and consecutively, producing 25 months’ imprisonment.