Bailey, R v

A custodial sentence, including one suspended on conditions, must be proportionate to the offence. It must not be structured to create an additional incentive to reform by making its effective duration longer upon breach.

Credit for time spent on remand will normally be given under Criminal Justice Act 2003, section 240. A direction withholding credit under section 240(4)(b) requires clear reasons stated in the sentencing remarks. A direction founded only on a wish to impose a longer effective sentence upon breach is insufficient.

The appellant pleaded guilty at Coventry Crown Court to blackmail and resisting arrest after threatening two women in order to obtain £7.50. He had spent 178 days on remand before sentence.

HHJ Ross imposed 12 months’ imprisonment, suspended on conditions intended to address the appellant’s alcohol misuse. The judge directed that the remand period would not count if the sentence were activated. After breaches of the curfew and alcohol-service requirements, the judge activated the sentence and maintained the exclusion of the 178 days’ credit.

The appeal concerned whether the suspended sentence and the direction withholding credit for remand custody were lawful and proportionate.

1. Appeal allowed in part. The court left standing the 12-month sentence imposed on 13 August 2010. Allowing for the late plea, it was a proper sentence for the offending.

2. A suspended custodial sentence remains a custodial sentence which may have to be served following breach. A sentencing judge must not impose an excessive term merely to create the maximum incentive for an offender to reform. Here, the judge’s rehabilitative intention was understandable, but the appellant’s extensive remand custody meant that a community penalty was an available alternative.

3. Under section 240(3) of the Criminal Justice Act 2003, credit for remand custody would normally be given. The exceptional power in section 240(4)(b) to direct otherwise required clear reasons stated in the sentencing remarks. Applying the guidance in Gordon and others [2007] 2 Cr App R (S) 66, no reasons of the required quality were present. The judge’s statements indicated only a desire to make the sentence longer if the order were breached.

4. The court quashed the direction excluding the 178 days from credit. That credit meant that the original sentence had effectively been served when the breaches were dealt with, and no further part of it was to be served. For the breaches, the court imposed concurrent sentences totalling 19 weeks and one day, subject to any adjustment needed to permit release that day.

• Court of Appeal (Criminal Division): Allowed the appeal in part and quashed the direction that 178 days on remand should not count towards the sentence: [2011] EWCA Crim 397.

• Coventry Crown Court: HHJ Ross imposed 12 months’ imprisonment, suspended on conditions. Following breaches, the judge activated the sentence and directed that the pre-sentence remand period should not count.