R v Scott Cowell

When deciding whether to suspend a custodial sentence, a sentencing court must weigh the factors in the relevant sentencing guideline. It should address both the factors favouring suspension and those indicating that immediate custody is required. This is a disciplined evaluative exercise, not a box-ticking process.

Exceptional circumstances are not required before a custodial sentence may be suspended. A sentence of less than two years is capable of suspension, but the decisive question is whether suspension should be ordered on the facts. Immediate custody may remain necessary where appropriate punishment can only be achieved by custody, even if a factor favouring suspension is present.

The appellant pleaded guilty in the Crown Court at Luton to breaching a non-molestation order and assault by beating his former partner. The order prohibited violence, threatening communications and attendance within 100 metres of an address where she was residing.

He repeatedly attended and stayed at her home in breach of the order. During that period he assaulted her by tipping her from a bed after becoming angry. The sentencing judge treated the breach as persistent, assessed it as Category 2A, and imposed 12 months’ immediate imprisonment after allowing credit for the guilty plea.

With leave of the single judge, the appellant appealed on the basis that a community order, or a suspended custodial sentence, should have been imposed. The central issue was whether the judge had correctly approached suspension under the relevant guideline.

1. Appeal dismissed. The sentence of 12 months’ immediate imprisonment was not manifestly excessive and was correctly upheld.

2. The Court accepted that the sentencing judge had expressly addressed only one of the six factors in the table in the relevant guideline governing suspension of custodial sentences. A sentencing judge should consider each factor expressly. This is not a mechanical exercise. It is a useful discipline to determine, on balance, whether immediate custody can be avoided.

3. The judge erred insofar as she treated exceptional circumstances as necessary for suspension. The correct question was whether the guideline factors, weighed against the facts, made suspension appropriate. Every sentence of less than two years is capable of suspension; legal availability does not establish that suspension should be ordered.

4. The Court therefore conducted the balancing exercise afresh. There was no strong personal mitigation and no significant harmful impact on others from immediate custody. The prospect of rehabilitation was, at most, uncertain, despite the optimistic pre-sentence report. In contrast, the appellant presented a risk to the complainant, had a history of poor compliance with court orders, and had persistently breached the order intended to protect her.

5. Appropriate punishment could only be achieved by immediate custody. That factor can be critical even where a factor favouring suspension is present: R v Ross John Middleton [2019] EWCA Crim 663 and R v S [2022] EWCA Crim 1362. On the proper balance, the immediate custodial sentence was justified.

• Court of Appeal (Criminal Division): dismissed the appeal and upheld the 12-month immediate custodial sentence: [2023] EWCA Crim 162.
• Crown Court at Luton: on 9 November 2022, imposed 12 months’ imprisonment for breach of a non-molestation order, with no separate penalty for assault by beating.