Beirne, R v

On breach of a suspended sentence order, the court must activate the suspended term in full or in part unless activation would be unjust in all the circumstances. The principal considerations are the offender’s compliance with the order and the facts and nature of the new offences. The court may also consider strong personal mitigation, realistic rehabilitation prospects and the impact of immediate custody on others, but only where those matters are new and exceptional. Serious offending connected with the consequences of the suspended sentence may justify immediate custody and consecutive activation. Full compliance with the order, the time remaining in its operational period and exceptional personal circumstances may justify a substantial reduction in the term activated.

The appellant had received a 16-month suspended sentence at Liverpool Crown Court for historic sexual offences, together with unpaid work and rehabilitation requirements. During the operational period, he committed offences involving a false candidate nomination document and failure to notify a change of name under the sex offender notification regime.

Bolton Crown Court imposed eight months’ immediate imprisonment for the new offences and activated eight months of the suspended term consecutively, producing 16 months. The appellant appealed against the extent and consecutive operation of the activation, relying on compliance with the order, personal mitigation, mental ill health and totality. The central issue was whether the activation was unjust, and if not, what reduction was appropriate.

1. The appeal was allowed in part. The court quashed the activation of eight months and ordered activation of four months, still consecutively to the eight-month sentence for the breach offences. The total sentence was therefore reduced to 12 months’ imprisonment.

2. Under paragraph 8 of Schedule 12 to the Criminal Justice Act 2003, activation was required in full or in part unless it would be unjust in view of all the circumstances. The court had to consider, in particular, compliance with the community requirements and the facts of the subsequent offences.

3. The Sentencing Council Guideline identified compliance and the facts and nature of the new offence as the predominant considerations. Other relevant matters included strong personal mitigation, a realistic prospect of rehabilitation and significant impact on others from immediate custody. Those matters had to be new and exceptional, rather than matters already present when the suspended sentence was imposed.

4. Activation of at least part of the term was justified. The new offences were serious and related to consequences of the suspended sentence, including the notification obligations and the prohibition on standing for election. The appellant had deliberately sought to avoid those consequences. Immediate custody was therefore justified, and consecutive activation was proper.

5. The reduction from 16 to eight months had been insufficient. Greater weight should have been given to full compliance with the unpaid work and rehabilitation requirements, the strong personal mitigation, the four months remaining in the operational period, and the additional impact of first custody at the age of 59 in the conditions created by the COVID-19 pandemic, having regard to Manning [2020] EWCA Crim 592.

6. The £140 victim surcharge was quashed. Applying R v Abbott [2020] EWCA Crim 516, the Crown Court was dealing with the suspended-sentence offences, which precluded a surcharge order even for the breach offences dealt with on the same occasion.

• Court of Appeal (Criminal Division): [2020] EWCA Crim 1433 allowed the appeal in part, reduced the activated suspended term from eight months to four months, maintained consecutive operation, reduced the total sentence to 12 months’ imprisonment and quashed the victim surcharge.
• Bolton Crown Court: imposed eight months’ imprisonment for the breach offences and activated eight months of the suspended sentence consecutively, making 16 months.
• Liverpool Crown Court: imposed a 16-month sentence suspended for two years for historic sexual offences, with unpaid work and rehabilitation requirements.