HANH TUYET NGUYEN v REX

An offender aged 21 or over facing a first custodial sentence remains entitled to legal representation where a representation order is in force and the representatives remain willing to act. Assistance received after conviction but before sentence may satisfy the temporal requirement in Sentencing Act 2020, section 226, but does not remove that entitlement. It is unlawful to impose imprisonment while the representation order remains in force, unless a statutory exception applies or the order is properly withdrawn. On quashing the sentence, the Court of Appeal may impose a sentence no more severe overall under section 11(3) of the Criminal Appeal Act 1968. Mitigation already reflected in reducing the sentence should not be counted again to justify suspension.

The appellant was convicted at Southwark Crown Court in case T20207210 of one count of converting criminal property and two counts of concealing criminal property. She received concurrent two-year terms of imprisonment and a four-year director disqualification. At the sentencing hearing, her representation order remained in force, but counsel did not attend as part of the Criminal Bar Association days of action. The appellant argued that imprisonment without legal representation was unlawful. She also challenged the sentence as excessive and argued that it should have been suspended. The central issues were the effect of section 226 of the Sentencing Act 2020 and the proper sentence if the original sentence was quashed.

1. Sentence quashed. Leave to appeal was granted. The sentence imposed by the Crown Court was unlawful because the appellant’s representation order remained in force, her lawyers had not withdrawn from acting, and her lack of attendance was not her choice or fault.
2. The statutory scheme in Part 1 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 gave the appellant representation by her selected lawyers unless the order was withdrawn under regulation 9 of the Criminal Legal Aid (Determinations by a Court and Choice of Representatives) Regulations 2013. None of the statutory grounds for withdrawal or the exceptions in section 226(7) and (8) of the Sentencing Act 2020 applied.
3. Although written submissions meant that the appellant had received legal assistance after conviction and before sentence, satisfying section 226(6), that did not end the matter. Consistently with R v Linda Wilson (1995) 16 Cr App R (S) 997, the continuing representation order protected the appellant’s right to representation at sentencing. The purpose of the statutory wording was to control an offender who dispensed with legal representatives, not to deprive an offender of assistance at a critical stage because counsel was unavailable for reasons outside the offender’s control. The court also relied on the legal-aid principles described in Re McC (a minor) [1985] AC 528 and R v Kirk (Maurice) (1983) 76 Cr App R 194.
4. On the merits, the appellant had a leading role in sophisticated, planned and sustained money laundering. The amount involved placed the offending in category 3 harm and high culpability was correctly assessed. The two-year term already gave full weight to delay, family circumstances and the absence of previous convictions. Those factors could not be used again to justify suspension. Immediate custody was neither wrong in principle nor manifestly excessive.
5. Under section 11(3) of the Criminal Appeal Act 1968, the court imposed concurrent sentences of two years’ imprisonment on each count, running from the date on which the Crown Court purported to sentence the appellant.

• Court of Appeal (Criminal Division): Leave granted. The sentence was quashed as unlawful, but concurrent two-year sentences were imposed under section 11(3) of the Criminal Appeal Act 1968.
• Southwark Crown Court: The appellant was convicted and sentenced to concurrent terms of two years’ imprisonment, with a four-year director disqualification.