Brindle, R. v

On an appeal against sentence, the appellate court reviews the sentence as a whole. An offender cannot retain a favourable component while challenging another component of a composite sentence.

Where lower-value criminal damage is summary-only, the aggregate custodial term for that offence and associated common assaults must comply with the six-month limit imposed by Magistrates' Courts Act 1980, section 133. A separate breach of a protective non-molestation order may properly attract a consecutive term. The court may therefore restructure an unlawful sentence while preserving a justified overall custodial assessment.

The appellant pleaded guilty in the Crown Court at Maidstone to criminal damage, two assaults on his former partner, and breach of a non-molestation order. The offending arose after the breakdown of their relationship and included violence, damage to a gold chain, and a deliberate breach of the protective order shortly after its service.

HHJ Williams imposed a 12-month suspended sentence. She expressed it as consecutive terms for the summary-only criminal damage and assault offences, with a concurrent term for the breach of the non-molestation order. The appellant challenged both the custody threshold and the sentence. The Registrar referred the application to the full court because of concern about the sentence's construction.

1. Appeal allowed to restructure and reduce the sentence. The judge's stated construction was unlawful. The lower-value criminal damage was summary-only. Accordingly, the aggregate custodial term for that offence and the two common assaults could not exceed six months under section 133 of the Magistrates' Courts Act 1980.

2. An appeal against sentence concerns the whole sentence. The appellant could not retain the favourable concurrent treatment of the breach of the non-molestation order while attacking the consecutive terms imposed for the other offences. The court applied the principle stated in R v Hyde, [2016] EWCA Crim 1031.

3. The custody threshold was crossed. The assaults, criminal damage, repetition of conduct, domestic-abuse context, effect on the complainant and the appellant's relevant previous convictions justified a five-month custodial term for the summary-only matters. A five-month term was also appropriate for the deliberate and serious breach of the protective order.

4. The court imposed two months for criminal damage and five months for each assault, all concurrent. It imposed five months for breach of the non-molestation order consecutively. The resulting suspended term was therefore 10 months, suspended for two years with the existing rehabilitation activity and unpaid-work requirements.

• Court of Appeal (Criminal Division): Allowed the appeal to correct the unlawful construction of the sentence and substituted a 10-month suspended sentence.
• Crown Court at Maidstone: HHJ Williams imposed a 12-month suspended sentence in August 2018.