Fox, R v

A sentencing court considering custody must follow the structured sequence in the Definitive Guideline on the Imposition of Community and Custodial Sentences. It should decide whether the custody threshold is passed, whether imprisonment is unavoidable, the shortest commensurate term, and whether that term may be suspended.

Strong personal mitigation and realistic rehabilitation may justify suspension. They cannot justify a community order where only a custodial sentence properly marks the seriousness of the offence. A suspended sentence may nevertheless be appropriate where immediate custody is unnecessary after the specified factors have been weighed.

The offender pleaded guilty in the magistrates’ court to sexual assault contrary to section 3 of the Sexual Offences Act 2003. He was committed to the Crown Court at Plymouth, which imposed a 12-month community order with 120 hours’ unpaid work.

On the Solicitor General’s reference under section 36 of the Criminal Justice Act 1988, the Court of Appeal considered whether that sentence was unduly lenient. The central issues were whether custody was required and, if so, whether the custodial sentence could properly be suspended.

1. The court granted leave to refer, held that the community order was unduly lenient, quashed it, and substituted 12 months’ imprisonment suspended for two years with 120 hours’ unpaid work.

2. The sentencing judge should have applied the Definitive Guideline on the Imposition of Community and Custodial Sentences. It required a sequential consideration of the custody threshold, the need for imprisonment, the shortest commensurate term, and suspension.

3. The custody threshold was plainly passed. Imprisonment was unavoidable to mark the seriousness of the sexual assault. The offender took shameless advantage of a plainly incapacitated stranger, persisted after an interruption, and was himself intoxicated. Those features justified an uplift from the applicable sexual-offences guideline starting point. The appropriate term was 18 months after trial, reduced to 12 months for the prompt guilty plea.

4. The court accepted that the offender’s lack of convictions, remorse, good character, progress towards rehabilitation, and absence of a significant continuing risk to the public strongly supported suspension. Although the decision was very lenient, the Crown Court had considered the relevant factors and its conclusion that immediate custody was unnecessary was, by a narrow margin, within the proper sentencing range. The unpaid-work requirement already performed was to count towards the substituted order. The surcharge and notification consequences were varied accordingly.

• Court of Appeal (Criminal Division) — On a reference under section 36 of the Criminal Justice Act 1988, the court held the community order unduly lenient and substituted a 12-month suspended custodial sentence: [2019] EWCA Crim 1459.
• Crown Court at Plymouth — On 22 May 2019, imposed a 12-month community order with 120 hours’ unpaid work.
• Magistrates’ court — The offender pleaded guilty and was committed to the Crown Court for sentence.