REGINA v NICHOLAS NELSON

In sentencing for persistent and seriously aggravated harassment and malicious communications, the court must assess each offence individually before applying totality. Concurrent sentences may be used for separate offences and victims, but only if the aggregate sentence properly reflects the overall criminality. High racial or religious aggravation does not require a mechanistic pro-rata increase from the sentence for the basic offence.

Mental disorder may mitigate culpability, but its weight depends on evidence of its actual effect on responsibility. Substance misuse and other indicators of high culpability remain relevant. A sentence should be suspended only where punishment can properly be achieved in the community. Persistent offending during earlier suspended sentences, including offending while on bail, may make immediate custody necessary. Suspended sentences breached by further offending should ordinarily be activated unless activation would be unjust, with totality guarding against double-counting.

Following guilty pleas, the Crown Court at Southwark sentenced the offender on 25 March 2022 for three offences: sending an electronic communication intending to cause distress or anxiety, and two counts of racially aggravated harassment. It imposed concurrent terms of imprisonment, suspended for 24 months, together with community requirements, and fines for breaches of two earlier suspended sentences.

The Solicitor General referred the sentences to the Court of Appeal under section 36 of the Criminal Justice Act 1988, contending that they were unduly lenient. The central issues were the proper categorisation and aggregate sentence, the weight of mental-health mitigation, whether custody should be immediate, and whether the earlier suspended sentences should be activated.

1. Leave and sentence length. Leave to refer was granted. The offending plainly passed the custody threshold. Counts 2 and 3 involved persistent, highly abusive and racially aggravated campaigns against separate victims. The conduct was properly treated as threatening as well as offensive, and Count 2 fell within the highest relevant culpability and harm categories. Count 1 was also serious.
2. Each count had to be considered separately, even though concurrent sentences were permissible. The individual minimum custodial terms were 12 months for Count 2, nine months for Count 3 and eight months for Count 1. Totality justified reducing the aggregate figure from 29 months to 24 months. The racial or religious aggravation increased seriousness, but the guideline did not require a mechanistic pro-rata increase.
3. Mental-health difficulties were a mitigating factor, but the evidence did not establish how the diagnosed or suspected borderline personality disorder reduced responsibility. Persistent alcohol and drug misuse was also relevant. Those matters did not displace the high-culpability categorisation in light of the intention to maximise fear or distress, planning, persistence and, particularly in Count 2, the implied threat of serious violence. A late guilty plea attracted five or possibly 10 per cent credit.
4. The sentence should not have been suspended. Despite rehabilitation and reduced risk, the offender had repeatedly offended during earlier suspended sentences and while on bail. The seriousness of the offending meant that appropriate punishment could be achieved only by immediate custody. The case was not a proper further last chance.
5. The earlier suspended sentences were liable to activation because further serious offences were committed during their operational periods. Activation and consecutive service would double-count the earlier sentences as aggravation. The proper course was to activate them concurrently with the substituted terms, followed by a final totality adjustment.
6. The sentences below were quashed. The substituted sentences were eight months on Count 1 and 18 months concurrent on each of Counts 2 and 3, all to be served immediately. The First and Second Suspended Sentences were activated and ordered to run concurrently. The fines for breach were quashed and repayment was to be arranged; the restraining order remained in force.

• Court of Appeal (Criminal Division): On an Attorney General’s reference under section 36 of the Criminal Justice Act 1988, leave was granted. The sentences were quashed and substituted with immediate custodial sentences, and the earlier suspended sentences were activated concurrently.
• Southwark Crown Court: On 25 March 2022, the court imposed concurrent terms amounting to 18 months’ imprisonment, suspended for 24 months, with community requirements and fines for breaches of earlier suspended sentences. The Court of Appeal held the sentences unduly lenient.