R v Fahran Nadeem

When fixing the operational period of a suspended sentence, the period should generally reflect the length of the custodial sentence. The Sentencing Council guidance is not an inviolable rule, but a judge departing from it should give reasons. An operational period of two years may be disproportionate to a 21-week custodial sentence, although an ongoing risk may justify a period exceeding the usual 12-month indication. On the facts, an 18-month operational period was appropriate.

The appellant pleaded guilty to dangerous driving, contrary to section 2 of the Road Traffic Act 1988. He received a 21-week custodial sentence suspended for two years, together with unpaid work, rehabilitation requirements and a driving disqualification.

He renewed his application for leave to appeal sentence. The challenge was limited to the two-year operational period of the suspended sentence. The appellant relied on his good character, guilty plea, remorse, risk assessments and the recommendation of a 12-month period in the pre-sentence report. The central issue was whether the maximum operational period was disproportionate in light of the sentence length and the Sentencing Council guidance.

1. Leave to appeal was granted. The appeal was allowed to the extent that the operational period was reduced from two years to 18 months.

2. Section 288(2) of the Sentencing Act 2020 requires the operational period of a suspended sentence order to begin on the day the order is made and to last for at least six months and no more than two years.

3. The Sentencing Council Guideline on the Imposition of Community and Custodial Sentences states that the suspension period should reflect the length of the sentence. A period of up to 12 months will normally be appropriate for a suspended sentence of up to six months. That guidance is general rather than inflexible. It should be followed unless the interests of justice require otherwise, and a judge departing from it should give reasons.

4. The sentencing judge gave no reasons for departing from the guidance. Considering the overall circumstances, the maximum two-year period was disproportionate to the 21-week custodial sentence and manifestly excessive.

5. The court nevertheless considered that a period exceeding 12 months was justified by the ongoing risk posed by the appellant. An operational period of 18 months was appropriate. The two-year period was quashed and an 18-month period substituted.

• Court of Appeal (Criminal Division): On 15 March 2023, leave was granted and the appeal was allowed to the extent that the two-year operational period was quashed and replaced with an 18-month period: [2023] EWCA Crim 408.
• Snaresbrook Crown Court: On 19 October 2022, Her Honour Judge English imposed a 21-week custodial sentence suspended for two years, with ancillary requirements and a driving disqualification.