Sutherland, R.

When imposing a community order, the court should usually take account of time spent on remand in custody for the offence or a related offence. Under section 149 of the Criminal Justice Act 2003, however, that is a discretionary and evaluative exercise, not an entitlement to automatic credit.

Significant remand time does not prevent a community order, including restrictive requirements, where the order remains proportionate and furthers the statutory purposes of sentencing. A discharge may properly be refused for serious racially targeted harassment. Where the offence does not pass the custody threshold, a custodial sentence cannot be imposed merely because of the remand period.

The appellant pleaded guilty in the Crown Court at Harrow to racially aggravated intentional harassment of a police officer. He was acquitted after trial of allegations that he had wounded his partner. He had been remanded in custody for four months and 20 days on all charges.

The judge imposed a six-month community order with 40 hours of unpaid work and a restraining order. The appeal challenged only the community order. The appellant submitted that the remand period required a conditional discharge, while the Crown contended that its effect under section 149 of the Criminal Justice Act 2003 was discretionary.

The central issue was the proper approach to remand custody when a court imposes a non-custodial sentence.

1. Appeal dismissed. The community order was neither wrong in principle nor manifestly excessive.
2. Automatic credit for remand custody is governed by statute where an offender is sentenced to imprisonment. There is no equivalent automatic-credit regime for a non-custodial sentence. Section 149 of the Criminal Justice Act 2003 instead permits the court, when determining restrictions on liberty in a community order, to take account of remand custody connected with the offence or one founded on the same facts or evidence.
3. The discretion under section 149 should usually be exercised with regard to a material period on remand. It does not prescribe a particular reduction or compel a discharge. Consistently with R v Rakib [2011] EWCA Crim 870, a community order may be appropriate even where remand custody equals or exceeds the custodial term otherwise justified, particularly where rehabilitation or public protection makes it appropriate. The mandatory sentencing purposes in section 142(1) remain relevant.
4. Here the agreed basis placed the harassment below the custody threshold, so any custodial sentence would have been wrong in principle. The offending was nevertheless a serious example of racially aggravated harassment because the abuse was specifically directed at an Asian police officer. A conditional or absolute discharge would therefore have been wrong in principle.
5. The sentencing judge had properly reflected the remand period by selecting the lowest available unpaid-work requirement, rather than the upper end of the recommended range. The restraining order was unchallenged.

• Court of Appeal (Criminal Division): dismissed the appeal against the community order.
• Crown Court at Harrow: on 17 May 2017, imposed a six-month community order with 40 hours of unpaid work following a guilty plea to racially aggravated intentional harassment; the appellant was acquitted of the wounding allegations.