Oriakhel, R v

When deciding whether a custodial sentence should be suspended, the court should address the custody threshold, whether imprisonment is unavoidable, the shortest commensurate term, and whether suspension is appropriate. A failure expressly to refer to the relevant sentencing guideline does not itself establish error if the sentencing judge has in substance considered immediate custody and the appellate court, applying the guideline questions, concludes that the sentence was justified.

Immediate custody may properly remain necessary despite rehabilitation prospects, personal mitigation and hardship to others where deterrence, lack of remorse, serious harm and conduct evincing disregard for the victim show that appropriate punishment cannot otherwise be achieved.

The appellant was convicted at the Crown Court at Snaresbrook of causing serious injury by dangerous driving, contrary to section 1A of the Road Traffic Act 1988. Following an episode of road rage towards a cyclist, he drove onto a busy pavement and seriously injured a pedestrian. He was sentenced to 16 months’ immediate imprisonment.

He appealed against sentence with leave, contending that the judge had insufficiently considered suspension of the custodial term because the relevant Definitive Guidelines on Imposition of Community and Custodial Sentences had not been expressly addressed. The central issue was whether, applying the guideline questions, the judge erred by imposing immediate rather than suspended custody.

1. Appeal dismissed. The sentence of 16 months’ immediate imprisonment was not manifestly wrong. Although the sentencing judge did not expressly address the applicable guideline, he had considered that only immediate custody was justified.

2. The guideline required consideration of four questions: whether the custody threshold had been passed; whether imprisonment was unavoidable; the shortest term commensurate with the seriousness of the offence; and whether the term could be suspended. On the judge’s findings, the custody threshold was plainly passed, imprisonment was unavoidable, and 16 months was the commensurate term.

3. The Court considered the suspension question afresh. Factors favouring suspension included the appellant’s previous good character, personal mitigation, a realistic prospect of rehabilitation, the serious effect of custody on his family, and the absence of a material risk to the public or a history of non-compliance with court orders.

4. Those matters did not require suspension. Appropriate punishment could only be achieved by immediate custody. A clear deterrent message was required where a driver’s rage led him to pursue a cyclist and mount a pavement. The appellant’s absence of remorse, the serious and lasting harm to the victim, and his attempt to evade responsibility also supported immediate custody.

5. The Court observed that the appeal would probably have been avoided had the sentencing judge made clear that he had considered the guideline and its relevant questions. That omission, however, did not affect the correctness of the outcome.

• Court of Appeal (Criminal Division): The appeal against the immediate custodial sentence was dismissed.
• Crown Court at Snaresbrook: The appellant was convicted on 25 April 2019 of causing serious injury by dangerous driving and sentenced to 16 months’ imprisonment.