Upton, R. v

When dealing with summary-only offending, a Crown Court may activate a suspended sentence consecutively without thereby imposing a fresh term of imprisonment. The six-month aggregate limit in section 133(1) of the Magistrates' Courts Act 1980 therefore does not invalidate that activation.

By contrast, imprisonment imposed after revocation of a community order is imposed for the first time. Under paragraph 23 of Schedule 8 to the Criminal Justice Act 2003, the Crown Court may deal with the offender only as the original magistrates' court could have done. It cannot make that fresh sentence consecutive where this would take the aggregate imprisonment for the relevant summary-only offences above six months.

The appellant pleaded guilty in the magistrates' court to common assault, a public-order offence and criminal damage. He was committed to Kingston-upon-Thames Crown Court for sentence. The offences were committed during the operational period of a suspended sentence and while a community order for an earlier common assault remained in force.

The Crown Court imposed six months' imprisonment for the newly committed summary-only offences, activated four months of the suspended sentence, and revoked the community order. It imposed three months' imprisonment for the earlier assault consecutively, producing a total of 13 months.

The appeal challenged the sentencing categories, the treatment of mitigation relating to alcoholism, and the legality and totality of the consecutive sentence imposed after revocation of the community order.

1. Appeal allowed in part. The sentencing judge was entitled to treat the common assault as a category 1 offence and the section 4 offence as category 2 under the relevant sentencing guidelines. The seriousness and duration of the public disorder, the violence, intoxication, public setting and previous similar offending justified that assessment. An immediate custodial sentence remained appropriate despite the appellant's suitability for alcohol treatment.
2. Under paragraphs 8(2) and (3) of Schedule 12 to the Criminal Justice Act 2003, the judge was obliged to activate the suspended sentence unless it would be unjust. The multiplicity of further offending justified activation. The four-week reduction for completion of the curfew requirement was generous.
3. The court followed R v Chamberlain (1992) 13 Cr App R(S) 525 and R v Hester [2016] 2 Cr App R(S) 43. Activation of a suspended sentence does not impose imprisonment afresh: the term was imposed when the suspended sentence order was made. Section 133(1) of the Magistrates' Courts Act 1980 did not therefore prevent the activated term from running consecutively.
4. The position differed on revocation of the community order. Although paragraph 23 of Schedule 8 to the Criminal Justice Act 2003 gave the Crown Court power to revoke the order and resentence for the original assault, any imprisonment was then imposed for the first time. Paragraph 23(2)(b)(ii) confined the Crown Court to the sentencing powers the magistrates' court would have had. Read with section 133(1), that prevented a consecutive three-month term which increased the aggregate imprisonment for the relevant summary-only offences beyond six months.
5. The three-month sentence for the earlier assault was therefore ordered to run concurrently. The total sentence was reduced from 13 months to 10 months' imprisonment.

• Court of Appeal (Criminal Division): Allowed the sentence appeal to the limited extent of making the three-month sentence imposed after revocation of the community order concurrent.
• Kingston-upon-Thames Crown Court: On 7 March 2019 imposed a total of 13 months' imprisonment after sentencing for the committal offences, activating a suspended sentence, and revoking a community order.