Dawes, R. v

Where time spent on remand has already exceeded the appropriate custodial sentence, a court will usually act wrongly by adding a suspended custodial term merely to provide future restraint. Automatic credit for remand time may also make activation impossible. Post-sentence supervision does not cure the resulting double punishment or give the suspended term a proper purpose.

On a sentence appeal, the court must comply with section 11(3) of the Criminal Appeal Act 1968. An exceptional conditional discharge may be substituted where it is no more severe than the sentence below and, in light of the remand already served, further punishment is inexpedient.

The appellant admitted breaching a non-molestation order by entering his former partner’s home. A further alleged breach was not pursued. He had spent 83 days in custody on remand before being granted bail.

His Honour Judge Berlin treated the offence as category 2B under the guideline for breach of a protective order. Starting from 12 weeks’ imprisonment, the judge reduced the term for remand time and guilty plea, and imposed three weeks’ imprisonment suspended for two years.

The appeal challenged whether a suspended sentence could properly be imposed when the remand period already exceeded the custodial term regarded as appropriate, and whether a conditional discharge could be substituted without offending section 11(3) of the Criminal Appeal Act 1968.

Disposition

1. The Court allowed the appeal. It discharged the suspended sentence and substituted a conditional discharge for 12 months.

2. The appellant’s 83 days on remand represented about twice the 12-week starting point adopted by the judge. There was no justification for adding a suspended custodial sentence to that period in order to keep a sentence hanging over him. That would be disproportionate and would, in substance, punish him twice.

3. Automatic credit under section 240ZA(7) of the Criminal Justice Act 2003 would in any event be given against the suspended term if it were activated. Since the remand credit exceeded the three-week term, activation was impossible. The Crown’s reliance on post-sentence supervision under the same Act was an artificial retrospective attempt to preserve the sentence. It did not answer the double-punishment objection, and the Court questioned whether supervision could take effect if activation was impossible.

4. The Court applied the approach in R v Hewitt [2011] EWCA Crim 885: where remand custody exceeds the immediate custodial term merited by the offence, a suspended sentence will usually be wrong and another sentencing disposal should be considered.

5. An immediate custodial sentence raised a difficulty under section 11(3) of the Criminal Appeal Act 1968, because the appellate court must not deal with the appellant more severely when the case is taken as a whole. The Court was concerned by the implications identified in R v Thompson [2018] EWCA Crim 639. It therefore used section 12 of the Powers of Criminal Courts (Sentencing) Act 2000 to impose a conditional discharge. The exceptional disposal reflected the excessive remand period, not any leniency towards breach of a non-molestation order.

• Court of Appeal (Criminal Division) — allowed the appeal against sentence, discharged the suspended sentence and substituted a conditional discharge for 12 months.

• Crown Court — His Honour Judge Berlin imposed three weeks’ imprisonment, suspended for two years, for breach of a non-molestation order.

• Dudley Magistrates’ Court — the appellant indicated a guilty plea to the admitted breach and was remanded in custody pending the Crown Court proceedings.