Maughan, R v

Where an offender has spent substantial time on remand, a sentencing court should not impose a suspended custodial sentence with unpaid work if an immediate custodial sentence would both reflect the offending and give proper credit for the remand period. The sentence should be structured so that the offender receives that credit.

The appellant pleaded guilty in the Crown Court at Liverpool to affray and racially aggravated common assault arising from a drunken and violent bar brawl involving members of his family.

He had spent 198 days on remand before sentence. The judge held that the custody threshold was crossed, but imposed six months’ imprisonment suspended for two years and 150 hours’ unpaid work. The appellant appealed against that sentence.

The issue was whether the sentence should instead have been constructed to give him credit for the substantial period spent on remand.

1. Appeal allowed. The suspended sentence and the 150-hour unpaid-work requirement were quashed. They were replaced by six months’ immediate imprisonment.
2. The offending crossed the custody threshold. It involved sustained violence, racial abuse, and a drunken brawl in which people were assaulted and some suffered broken limbs. The sentencing judge was entitled to take account of the appellant’s record, age, plea basis, report and totality.
3. The appellant had already spent 198 days on remand, equivalent to about 13 months’ custody. Had an immediate custodial sentence been imposed, that period would have been credited against it; a six-month immediate sentence would therefore have resulted in his immediate release.
4. Following R v McCabe (1988) 10 Cr App R(S) 134 and R v Peppard (1990) 12 Cr App R(S) 88, it was inappropriate to impose a suspended sentence and unpaid work in circumstances where immediate custody would have given credit for the remand period. The sentence should have been framed to afford that credit.
5. The substituted immediate sentence was superficially more serious, but its practical effect was that the appellant would have been available for release when sentenced.

• Court of Appeal (Criminal Division): Allowed the appeal and substituted six months’ immediate imprisonment for the suspended sentence and unpaid-work requirement.
• Crown Court at Liverpool: On 8 October 2010, imposed six months’ imprisonment suspended for two years, with 150 hours’ unpaid work, for affray and racially aggravated common assault.