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A court may not impose a custodial sentence merely to secure an offender’s release after a lengthy period on remand. Under Criminal Justice Act 2003, section 152(2), custody is unavailable unless the offence, alone or with associated offences, is so serious that neither a fine nor a community sentence is justified.

Time spent on remand does not, however, make a community order wrong in principle. The court may take that time into account under section 149, while giving effect to the statutory purposes of sentencing, including rehabilitation and protection of the public. A community order may therefore remain appropriate where it offers realistic rehabilitative and protective benefits.

The appellant pleaded guilty at Wood Green Crown Court to criminal damage consisting of breaking the glass in a framed picture. The prosecution offered no evidence on the associated counts of robbery and blackmail, and not-guilty verdicts were entered on those counts.

She had spent 18 weeks on remand before sentence. The judge imposed a 12-month community order with a 35-day rehabilitation activity requirement, directed to drug addiction and anger-management problems, and made a restraining order.

On appeal, the appellant contended that a short custodial sentence should instead have been imposed, because her remand period exceeded the maximum available custodial penalty, or that the order should be replaced by a financial penalty. The issue was whether the community order was wrong in principle or manifestly excessive.

1. Appeal dismissed. The sentence was neither wrong in principle nor manifestly excessive.

2. Section 152(2) of the Criminal Justice Act 2003 imposed a fundamental legal obstacle to the proposed short custodial sentence. Custody could be imposed only if the offence, or it together with associated offences, was so serious that neither a fine nor a community sentence could be justified. Breaking the glass in a picture frame could not meet that threshold. The sentencing judge therefore could not lawfully impose custody merely because it would have secured the appellant’s immediate release after remand.

3. In any event, the fact that time on remand exceeded any likely custodial term did not make a community order impermissible. The court treated R v Rakib [2011] EWCA Crim 870 as confirming that principle. Under section 142, sentencing must have regard to the statutory purposes, including rehabilitation and protection of the public. Section 149 permits, but does not require, the court to take remand time into account when fixing the restrictions on liberty in a community order.

4. The offence, considered with the appellant’s offending history, justified a community order. Its rehabilitative and protective purposes were substantial. The probation evidence showed some progress and that her personal and medical difficulties were being recognised. The order did not set her up to fail.

• Court of Appeal (Criminal Division): Dismissed the appeal against sentence.

• Crown Court at Wood Green: Following a guilty plea to criminal damage, imposed a 12-month community order with a 35-day rehabilitation activity requirement.