Finlay, R. v

An electronically monitored curfew imposed under a suspended sentence order is part of the overall sentence and must be suitable for the offender. Its length and daily duration must relate to culpability and/or need, and must not make the sentence more severe than the facts merit. The statutory credit available for qualifying electronically monitored bail curfews does not require a set-off for a curfew imposed as a suspended-sentence requirement.

A suspended custodial term should be the term that would have been imposed immediately. Personal circumstances may properly justify suspension, but do not necessarily require a lower custodial term.

The appellant pleaded guilty at Chester Crown Court to benefit fraud. Having initially been entitled to benefits, she failed for almost six years to disclose that she was living with a partner who could contribute to household expenses. She dishonestly received about £60,000.

She received eight months’ imprisonment, suspended for two years, with an electronically monitored curfew from 8pm to 6am for 12 months. She appealed the length of the custodial term and, principally, the severity of the curfew requirement.

1. The appeal was allowed to a limited extent. The court upheld the eight-month custodial term but reduced the electronically monitored curfew from 12 months to four months.

2. The offending plainly crossed the custody threshold. Although eight months’ imprisonment could be regarded as severe, it fell within the judge’s discretion given the nearly six-year duration of the fraud and the approximately £60,000 obtained. Previous good character and remorse carried limited weight in that context. The judge was entitled to reflect the appellant’s domestic circumstances by suspending the sentence.

3. A custodial sentence that is suspended should be the same term as would have been imposed if it were immediate. The relevant sentencing guideline also supported the conclusion that the custodial term was not manifestly excessive.

4. Criminal Justice Act 2003, section 240 A(1), provides statutory credit for qualifying time on electronically monitored bail curfew. That provision did not require time spent on a curfew imposed under section 204 as part of a suspended sentence order to be set off against custody. Such a curfew nevertheless remained an element of the overall sentence and had to be assessed for proportionality.

5. The curfew had to be suitable for the offender, and its length and duration had to relate to culpability and/or need. It could not make the sentence more severe than the facts justified. Although 12 months was the statutory maximum under section 71 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012, nothing in this case justified that maximum. The appellant’s inability, for medical reasons, to undertake unpaid work did not justify a curfew of that severity.

• Court of Appeal (Criminal Division): allowed the sentence appeal to the limited extent of reducing the curfew requirement from 12 months to four months ([2015] EWCA Crim 328).
• Crown Court at Chester: following guilty pleas, imposed eight months’ imprisonment suspended for two years, with a 12-month electronically monitored curfew requirement.