R v Pemberton

For a suspended sentence, the operational period should reflect the sentence length. An operational period of up to 12 months will normally be appropriate for a suspended sentence of up to six months, unless justice requires otherwise.

The guilty-plea guideline distinguishes the first stage of proceedings from later stages. The exception allowing full credit applies where particular circumstances materially affect the defendant’s ability to understand the allegation or make an earlier plea unreasonable. A need to assess prosecution evidence is different from a need to understand guilt in fact and law.

A serious, sustained assault causing lasting harm may cross the custody threshold despite remorse and other mitigation.

The appellant pleaded guilty at the Crown Court at Wood Green to sexual assault contrary to section 3 of the Sexual Offences Act 2003. He received three months’ imprisonment, suspended for 24 months, together with unpaid work, rehabilitation activity, compensation and notification requirements.

He appealed against sentence, arguing that the operational period was excessive, that he should receive one-third credit for his guilty plea because he needed further evidence before pleading, and that the custody threshold had not been crossed. The central issues were the proper application of the sentencing guidelines and whether the sentence was proportionate to the offending and its impact.

Appeal allowed in part. The 24-month operational period was reduced to 12 months. All other elements of the sentence remained unchanged.

1. Operational period. The Sentencing Council Guideline states that the period for which a sentence is suspended should reflect the length of the sentence, and that up to 12 months will normally be appropriate for a suspended sentence of up to six months. The Judge gave no reason to depart from that guidance. A 24-month operational period for the three-month suspended sentence was therefore manifestly excessive.
2. Credit for guilty plea. The Court applied the principles identified in R v Plaku [2021] EWCA Crim 568; [2021] 4 WLR 82. A plea at the first stage ordinarily attracts one-third credit. At a later stage, credit should not generally exceed one-quarter unless exception F1 applies. That exception requires particular circumstances which significantly reduced the defendant’s ability to understand what was alleged or made it unreasonable to expect an earlier plea. Sentencers must distinguish evidence or advice needed to understand whether the defendant was guilty from material sought merely to assess the strength of the prosecution case.
3. The appellant knew that he had attended the after-party and had seen relevant CCTV and disclosure. The Instagram post merely confirmed the victim’s identification. It was not necessary for him to see it before understanding his position. The circumstances were materially different from those in R v Creathorne [2014] EWCA Crim 500, which involved amnesia and a Crown concession. There was no proper basis to interfere with the Judge’s refusal to grant more than one-quarter credit.
4. Custody threshold. The offending involved a sustained assault, repeated approaches, intoxication, serious distress and lasting harm. The Judge had taken account of the appellant’s limited offending history, character references and remorse. He was entitled to conclude that a community order would not provide sufficient punishment and rehabilitation.

• Court of Appeal (Criminal Division). On 12 November 2021, the appeal was allowed to the limited extent that the operational period was reduced from 24 months to 12 months: [2021] EWCA Crim 1768.
• Crown Court at Wood Green. The appellant was sentenced on 9 July 2021 to three months’ imprisonment suspended for 24 months, with associated requirements and orders.