R v Mario Salvato

For a series of similar offences, the usual sentencing approach is to identify a lead offence reflecting the overall criminality and impose concurrent sentences for the remaining offences, while applying the totality principle. The overall sentence must remain just and proportionate. A suspended custodial sentence should not be imposed where credit for time spent on remand would leave no realistic possibility of activating any part of the term after breach. Such an order would lack practical effect.

The appellant pleaded guilty to five theft offences and had been remanded in custody for a period equivalent to six months’ imprisonment. The Crown Court imposed consecutive sentences totalling 40 weeks, suspended for two years, together with rehabilitation, exclusion and trail-monitoring requirements. The appellant appealed, arguing that the sentence failed to reflect totality and that suspension of the custodial term was wrong in principle because of the time already served. The central issues were the proper aggregate sentence and whether a suspended sentence could realistically operate after credit for remand.

1. Appeal allowed. The offending comprised a series of similar thefts. Although there was no rigid rule, the usual practice would have been to sentence on a lead offence that reflected the overall criminality and impose concurrent sentences on the other offences. That approach focuses the sentencing judge on the totality principle, namely that the overall sentence must be no more than just and proportionate to the offending as a whole.
2. The custody threshold had properly been crossed. However, the notional sentence of 60 weeks’ imprisonment after trial and before credit for the guilty pleas was manifestly excessive. Even allowing for the appellant’s poor record and breach of the community order, the offending collectively merited no more than nine months’ imprisonment after trial. Applying full credit for the guilty pleas produced a sentence of six months, equivalent to the period effectively served on remand.
3. The court distinguished R v Maughan [2011] EWCA Crim 787. In that case, the time spent on remand exceeded the period that could have been imposed as the statutory maximum, whereas that was not so here. Nevertheless, a suspended sentence of six months would have been pointless in practical terms because credit for time served would have made it impossible to activate any part of the term, even after complete non-compliance with the order. It was wrong in principle to make an order incapable of having a realistic practical effect.
4. The suspended sentence was quashed. It was replaced by immediate imprisonment for 26 weeks, treated as time served at the date of sentence. None of the requirements imposed below therefore continued to have effect, although the court took account of their operation between sentence and appeal.

• Court of Appeal (Criminal Division): allowed the appeal, quashed the suspended sentence and substituted 26 weeks’ immediate imprisonment treated as time served: [2023] EWCA Crim 391.
• Crown Court: imposed consecutive sentences totalling 40 weeks’ imprisonment, suspended for two years, with additional requirements.