Thaker, R. v

A decision whether to suspend a custodial sentence is for the sentencing judge, and an appellate court will interfere only where the decision is clearly wrong or involves an error of principle.

Where a curfew requirement is realistically available, it may provide immediate and tangible punishment within a suspended sentence. A judge who treats immediate custody as inevitable because no punitive condition can be attached should consider that option. Serious ill health and positive good character may, in the circumstances of the offence and sentence, provide a clear basis for suspending an otherwise justified custodial term.

The appellant pleaded guilty at Cardiff Crown Court to assault occasioning actual bodily harm upon his wife. The sentencing judge imposed eight months’ immediate imprisonment.

The assault was sustained and included repeated slaps, a kick to the victim’s stomach and efforts to prevent her leaving. The victim sustained facial swelling and a scalp wound. The appellant had no previous convictions but had serious and unresolved health problems.

He appealed on the basis that the sentence was too high, insufficient weight had been given to mitigation, and the judge had failed to consider a curfew requirement that could accompany a suspended sentence.

1. Appeal allowed. The Court granted leave, quashed the sentence of eight months’ immediate imprisonment and substituted eight months’ imprisonment suspended for two years.
2. The sentencing judge was entitled to place the offence at the top of category 2 of the assault definitive guideline. It was a sustained domestic attack in the victim’s home, caused a relatively serious injury, and included a kick which equated to the use of a weapon. Preventing the victim from leaving and reporting the incident was further aggravation. A provisional sentence of 12 months, reduced by one third for the guilty plea to eight months, was therefore justified.
3. The decision whether to suspend imprisonment remained one for the sentencing judge. Appellate intervention is limited to a decision that is clearly wrong or affected by an error of principle. Here, the judge erred by concluding that the appellant’s health meant that no punitive condition could be attached to a suspended sentence. A curfew at his mother’s home had been identified in the pre-sentence report and would have provided immediate and tangible punishment.
4. The appellant’s continuing serious ill health, together with his positive good character, gave a clear basis on which the custodial term should have been suspended. The immediate sentence was consequently manifestly excessive.
5. Although a curfew requirement would ordinarily have been appropriate, the appellant had already spent about six weeks in custody. No further requirement was attached to the suspended sentence.

• Court of Appeal (Criminal Division) — Leave to appeal sentence was granted. The appeal was allowed and the immediate custodial sentence was replaced by a suspended sentence.
• Cardiff Crown Court — Following a guilty plea to assault occasioning actual bodily harm, the appellant was sentenced on 3 February 2016 to eight months’ imprisonment.