R v Jonathan Da Silva

On an Attorney General reference for undue leniency, a sentencing court must apply the relevant sentencing guidelines unless it finds that departure is in the interests of justice. Good character, genuine remorse and a prospect of rehabilitation did not justify an exceptional community order where the offending was serious, sustained domestic abuse and required a custodial sentence.

The court must apply totality and balance the guideline factors for and against suspension. In deciding whether to suspend a custodial term on a reference, it may take account of time already spent in custody, demonstrated post-sentence compliance and current rehabilitation.

R v Jonathan Da Silva concerned an Attorney General reference under section 36 of the Criminal Justice Act 1988 alleging that a community order was unduly lenient.

The respondent pleaded guilty in the Crown Court at Inner London to two assaults occasioning actual bodily harm, intentional strangulation, threats to kill, and controlling or coercive behaviour in an intimate relationship. The offences involved sustained controlling conduct and two episodes of serious violence against his partner.

On 28 September 2023, the Crown Court imposed concurrent 18-month community orders with alcohol abstinence and monitoring, rehabilitation activity and unpaid-work requirements. The central issues were whether that sentence was unduly lenient and, if custody was required, whether the resulting term should be suspended.

1. The reference was allowed. The court granted leave, quashed the concurrent community orders and substituted concurrent sentences of 22 months’ imprisonment, suspended for two years, with the existing requirements attached.
2. The Recorder had recognised that a community order was exceptional but was wrong to conclude that it was available. A court must apply the relevant sentencing guidelines unless it finds that departure is in the interests of justice. No such finding was made and the court could identify no basis for one. A community order did not impose a sufficient restriction on liberty for the overall criminality.
3. The court assessed the offending as requiring 33 months’ custody before mitigation and plea credit. It applied an eight-month reduction for substantial mitigation, then a 12 per cent reduction for the late guilty plea, producing a term of 22 months. The assessment reflected the domestic setting, repeated violence, abuse of the victim and totality, while avoiding a simple addition of separate sentences.
4. Suspension nevertheless remained available. The court considered factors against suspension, including the risk to future intimate partners. It also considered the realistic prospect of rehabilitation and strong personal mitigation. It gave material weight to the equivalent of three months already spent in custody and the respondent’s positive compliance with the community-order requirements after sentence.
5. The suspended sentence retained the alcohol abstinence and monitoring requirement for 30 days, rehabilitation activity requirement for 30 days and unpaid-work requirement for 120 hours. The court warned that further offending during the operational period could lead to activation of the suspended term.

• Court of Appeal (Criminal Division): On the Attorney General’s reference, the court granted leave and quashed the community orders. It imposed concurrent sentences of 22 months’ imprisonment, suspended for two years ([2023] EWCA Crim 1624).
• Crown Court at Inner London: On 28 September 2023, the Recorder imposed concurrent 18-month community orders with alcohol abstinence and monitoring, rehabilitation activity and unpaid-work requirements.