Okang, R v

Suspending a custodial sentence requires a qualitative assessment of the factors for and against suspension, rather than a simple count of factors. On appeal, the offender must show that the factors favouring suspension were so preponderant that immediate custody was manifestly excessive. In offences facilitating fraud, deterrence may make immediate custody unavoidable. The sentence must also reflect an unusual aggravating feature, such as spending a substantial part of a victim’s money for personal benefit.

The appellant pleaded guilty to two counts of possessing criminal property, contrary to section 329(1)(c) of the Proceeds of Crime Act 2002. The Crown Court at Aylesbury imposed concurrent sentences of nine months’ imprisonment. The appellant relied on his lack of previous convictions, health conditions, family responsibilities, rehabilitation prospects and the harmful impact of imprisonment on others. The sole issue before the Court of Appeal was whether the custodial sentences should have been suspended.

1. The appeal was dismissed. The court held that the sentencing judge was entitled to conclude that appropriate punishment could be achieved only by immediate custody.
2. The guideline on Imposition of Community and Custodial Sentences requires a qualitative assessment of the factors for and against suspension. It does not require, or permit, the court simply to count the factors. The appellant had a realistic prospect of rehabilitation, strong personal mitigation and immediate custody would have a significant harmful impact on others.
3. On an appeal against sentence, the appellant must show that the factors indicating that suspension may be appropriate were so preponderant that it was manifestly excessive to impose immediate imprisonment.
4. The appellant’s role was not limited to passively receiving and transferring criminal property. He facilitated frauds on two victims and spent more than £14,000 of one victim’s money on goods for himself. Offending of this nature carries a deterrent element, and in many cases that element will require immediate custody. The unusual and striking personal expenditure had to be reflected in the sentence. The court therefore dismissed the appeal.

1. Court of Appeal (Criminal Division): The appeal against the concurrent nine-month sentences was dismissed: [2021] EWCA Crim 654.
2. Crown Court at Aylesbury: Following guilty pleas, concurrent sentences of nine months’ imprisonment were imposed on 8 January 2021.