R v Kalanther Nibraz

An adjournment for a pre-sentence report does not, by itself, create a legitimate expectation of a non-custodial sentence. The court must consider the whole of what the judge said and did. An expectation may arise where a specific non-custodial disposal is investigated and the judge’s conduct reasonably indicates that it will follow if the report is satisfactory. It is unlikely to arise where the judge states that all sentencing options remain open, expressly includes custody, or merely asks probation to explore constructive alternatives. A favourable report is relevant but is not decisive unless the earlier hearing created the required expectation.

The appellant pleaded guilty in the Crown Court at Manchester to controlling or coercive behaviour contrary to the Serious Crime Act 2015 and two assaults occasioning actual bodily harm. He received an overall sentence of 27 months’ imprisonment. He appealed with leave, arguing that comments made before and after his guilty pleas, together with the ordering of a pre-sentence report, created a legitimate expectation of a non-custodial sentence. The central issue was whether the sentencing judge’s willingness to look for a constructive disposal, read with the subsequent statements that all sentencing options remained open, gave rise to that expectation.

The appeal against sentence was dismissed. The sentence was not wrong in principle.

1. Governing principle. An adjournment may create a legitimate expectation of a particular non-custodial disposal where the court specifically investigates that disposal and the resulting report is satisfactory. The approach in R v Gillam (1980) 2 Cr. App. R. (S) 237 was followed in R v CD [2018] EWCA Crim 571. Conversely, a custodial sentence is not wrong in principle merely because a pre-sentence report recommends a non-custodial disposal where sentencing has not yet been reached or no reasonable expectation was created. The relevant question depends on what was said and what happened at the particular hearing: R v Stokes (1983) 5 Cr. App. R (S) 449, R v Houghton & Alexander (1985) 7 Cr. App. R. (S) 299, R v Norton & Claxton (1989) 11 Cr. App. R. (S) 143 and R v Toni Page [2005] EWCA Crim 406.
2. Application. The comments made on 25 April 2023 did not create any expectation. They concerned the possibility of pleading to a specific offence and described the eventual outcome as unpredictable. On 26 April, the judge’s willingness to look for a constructive disposal was immediately qualified by an express statement that all sentencing options, including further custody, remained open. The appellant was remanded in custody. The pre-sentence report was not favourable and identified community options without recommending them.
3. The court also observed that the concurrent six-month sentences for the assault offences appeared low against the relevant guideline category. Nevertheless, the overall sentence after trial could not be described as manifestly excessive, and there was no criticism of the guilty-plea credit. The sentence imposed after the plea was therefore not wrong in principle.

• Court of Appeal (Criminal Division) [2023] EWCA Crim 1343: dismissed the appeal against sentence.
• Crown Court at Manchester: following guilty pleas, sentenced the appellant on 18 May 2023 to an overall term of 27 months’ imprisonment, with concurrent terms for the assault offences.