Rakib, R v

When considering a community order for an offender who has spent time on remand, a sentencing court must give effect to all the statutory purposes of sentencing. Time on remand should usually be considered, but it does not automatically prevent a community order with restrictive requirements. The court must weigh the punitive effect already suffered against the prospective benefits of rehabilitation and public protection under the Criminal Justice Act 2003.

The statutory credit for remand time applies to custodial sentences. It does not require a mechanical set-off against a community order. A different conclusion generally applies to a suspended custodial sentence where remand credit would wholly exhaust the term if activated.

The appellant was convicted at Wolverhampton Crown Court of two offences of exposure contrary to section 66(1) of the Sexual Offences Act 2003. The incidents involved the same complainant, at the same location, with similar conduct and music playing. He received a three-year community order requiring supervision and sex-offender assessment, testing and treatment, and a costs order of £2,800.

He appealed against conviction, sentence and costs. The conviction appeal challenged the sufficiency of the evidence of exposure on the second occasion and the judge’s direction allowing the jury to use its findings on the first count. The sentence appeal raised whether 173 days spent on remand precluded a further punitive community order. The costs appeal concerned whether the remand period had been considered.

1. The appeals against conviction and sentence were dismissed. The appeal against the costs order was allowed and the order was quashed.

2. A submission of no case to answer succeeds only where a properly directed reasonable jury could not properly convict after careful consideration of all the evidence. The possibility of an innocent interpretation of circumstantial evidence does not require withdrawal of the count. The jury could infer exposure on the second occasion from the highly similar setting, music, hand movements and its finding that the appellant had exposed himself on the first occasion. This was not a mutual-support case of the kind considered in Chopra [2006] EWCA Crim 2133. The directions made clear that conviction on the second count required the jury to be sure of deliberate exposure.

3. Under section 142(1) of the Criminal Justice Act 2003, punishment is one purpose of sentencing, alongside rehabilitation and protection of the public. Section 240 concerns credit for custody against a custodial sentence. It does not impose an equivalent and determinative set-off where a court is considering a community order.

4. Section 149 gives the sentencing court discretion to have regard to remand time when fixing restrictions on liberty in a community order. The court should usually do so. However, even where remand time is equivalent to the maximum proper custodial sentence, the court may impose a restrictive community order if its rehabilitative or public-protection value makes it appropriate. The contrary analysis in Hemmings [2007] EWCA Crim 2413 was flawed because it did not address section 149.

5. A suspended sentence is different. If the mandatory remand credit would exhaust the suspended term upon activation, its rationale disappears and its imposition will usually be wrong. That principle did not prevent the community order here. The treatment requirement had substantial benefits for the appellant and the public, and the sentence was neither wrong in principle nor manifestly excessive.

6. When deciding whether a costs order is just and reasonable under section 18(1) of the Prosecution of Offenders Act 1985, the court had to consider that the appellant’s remand period prevented him from earning. The judge had not done so. In the unusual circumstances, the costs order was wrong in principle and was quashed.

• Court of Appeal (Criminal Division): Appeals against conviction and sentence dismissed; appeal against the costs order allowed and the order quashed.
• Crown Court at Wolverhampton: The appellant was convicted on two exposure counts and, on 6 July 2010, received a three-year community order with treatment-related requirements and a costs order of £2,800.