McDonagh, R. v

On breach of a suspended sentence order by a further offence, Criminal Justice Act 2003, Schedule 12, paragraph 8 requires the court to activate the custodial term either in full or for a lesser term, unless activation would be unjust in all the circumstances. The court is not required to activate the sentence in full unless injustice is shown.

Substantial completion of an unpaid-work requirement will generally justify some reduction in the activated term. The court must nevertheless balance that compliance against the timing and nature of the further offence, and have regard to totality. Full activation may remain appropriate in an exceptional case.

The appellant had received an 18-month sentence for wounding, suspended for two years, with 180 hours’ unpaid work. He completed the work promptly and paid compensation in full.

Three months after the suspended sentence was imposed, he committed a further and more serious wounding offence. At the Crown Court at Aylesbury, the judge imposed four and a half years’ imprisonment for that offence and activated the suspended term in full and consecutively. The total sentence was six years.

The appeal concerned whether the judge had wrongly treated full activation as mandatory unless it would be unjust, and whether credit should have been given for completion of the unpaid-work requirement.

1. Appeal allowed in part. The sentencing judge misstated the effect of Schedule 12, paragraph 8 to the Criminal Justice Act 2003. On conviction for a further offence during the operational period, the court must ordinarily activate the suspended sentence, but it may do so for its original term or for a lesser term. It need not first find that full activation would be unjust.

2. The statutory discretion requires consideration of all the circumstances. Those circumstances expressly include compliance with community requirements and the facts of the subsequent offence. Substantial completion of unpaid work will generally lead to some reduction in the activated term. As Kavanagh illustrates, a further offence during the currency of a suspended sentence will ordinarily require activation of at least part of that sentence: [2011] 1 Cr.App.R (S) 63.

3. The issue had to be reconsidered afresh because neither advocate corrected the judge’s error. The appellant’s prompt completion of all 180 hours and payment of compensation merited credit. However, the principal purpose of the order was to deter further offending. The breach occurred very shortly after the order and involved an offence of the same kind.

4. Balancing those matters, and applying totality, only a modest reduction was justified. The four-and-a-half-year sentence for the later offence remained intact. The activated suspended term was reduced from 18 months to 14 months, producing a total sentence of five years and eight months.

• Court of Appeal (Criminal Division): Allowed the sentence appeal to a limited extent and reduced the consecutively activated suspended term from 18 months to 14 months.
• Crown Court at Aylesbury: Imposed four and a half years’ imprisonment for wounding with intent and activated an 18-month suspended sentence in full and consecutively, resulting in six years’ imprisonment.