Ebbs, R. v

Before imposing custody, a court must obtain and consider a pre-sentence report unless it concludes that a report is unnecessary in the circumstances. Where custody is contemplated, the court should address the sentencing guideline sequentially: the custody threshold, whether imprisonment is unavoidable, the shortest commensurate term, and suspension.

Suspension must be considered by reference to the applicable factors. A realistic prospect of rehabilitation, strong personal mitigation and significant harmful impact on others may cumulatively make suspension appropriate, even where immediate imprisonment would otherwise be justified.

The appellant pleaded guilty to affray following an incident at an underground station after a football match. His participation was brief and he did not cause the victim’s serious leg injury. He received 12 months’ immediate imprisonment after the judge declined to obtain a pre-sentence report.

On appeal, he contended that a report should have been obtained and that the judge had failed properly to consider suspending the sentence. By the appeal hearing, he had served more than half of the sentence. The central issue was the proper approach to a pre-sentence report and to suspension of a custodial sentence.

1. Appeal allowed in part. The sentence of 12 months’ imprisonment was quashed and replaced with six months’ imprisonment, enabling the appellant’s immediate release.

2. Under Criminal Justice Act 2003, section 152 prevents custody unless the offence is sufficiently serious, and section 156 requires a pre-sentence report before the court forms that view unless it considers a report unnecessary. The judge should have obtained a report. He gave no reasons for refusing one, and the available mitigation did not show that he already had all relevant information.

3. The custody threshold was passed. The public violence, alcohol and serious injury meant imprisonment was unavoidable, and 12 months was the shortest commensurate term.

4. The judge should then have considered suspension expressly. All three relevant considerations favoured it: a realistic prospect of rehabilitation, strong personal mitigation, and significant harmful consequences for others dependent on the appellant. Had the appeal been heard promptly, the court would have suspended the sentence.

5. Because the appellant had already served the equivalent of six months’ imprisonment, a suspended sentence would improperly leave him subject to re-imprisonment if he reoffended. The proportionate remedy was therefore substitution of a six-month immediate sentence.

• Court of Appeal (Criminal Division): Allowed the appeal to the extent of substituting six months’ imprisonment for the 12-month immediate sentence.
• Crown Court: On 31 October 2018, sentenced the appellant to 12 months’ imprisonment for affray following a guilty plea.