R v Francis Peter Monk

Whether a short custodial sentence should be suspended depends on the circumstances of the individual case. Serious violence, continuing risk of harm, lack of insight or remorse, and substantial physical or psychological harm may outweigh delay, age, health, compliance with court orders and a tentative prospect of rehabilitation. Delay and prevailing prison conditions may be powerful factors, and in a borderline case may be decisive, but they do not require suspension where the case is materially more serious. A restraining order may be made to protect victims or others from harassment or fear of violence. Its terms and duration must be justified by the continuing risk of encounter and the offender’s conduct.

The appellant, aged 70 at sentence, pleaded guilty on re-arraignment in the Crown Court at Chelmsford to assault occasioning actual bodily harm. A harassment count was ordered to lie on the file. He received six months’ immediate imprisonment and a five-year restraining order under Sentencing Act 2020, section 360.

He appealed against the refusal to suspend the custodial sentence and against the necessity, proportionality and duration of the restraining order. The Court of Appeal considered the seriousness and consequences of the offending, the appellant’s lack of remorse and insight, the pre-sentence report, substantial delay, current prison conditions and the continuing risk of contact with the victims.

1. Appeal dismissed. The length of the six-month sentence was not challenged. The issue was whether immediate custody should have been suspended.
2. The sentencing judge was entitled to conclude that immediate custody was required. The offence involved prolonged neighbour intimidation, unprovoked violence against a vulnerable victim, serious physical injury, psychological harm and displacement from the victims’ home. The appellant showed no remorse or insight and continued to blame the victim. The pre-sentence report identified a medium risk of serious harm despite a low actuarial risk of reconviction. The prospect of rehabilitation was tentative, and compliance with court orders did not outweigh the factors against suspension.
3. Delay and current prison conditions were powerful factors which might be decisive in a borderline case. They did not make the refusal to suspend this sentence wrong in principle when weighed against the seriousness of the offending, risk to the public, lack of insight and remorse, and the harm caused. The court distinguished R v Ali (Arie) [2023] EWCA Crim 232, where rehabilitation was realistic and the offender posed no risk to the public. There was no failure to follow the Sentencing Council Guidelines.
4. Under Sentencing Act 2020, section 360, a restraining order may protect victims or other named persons from conduct amounting to harassment or causing fear of violence. Given the appellant’s conduct and the continuing possibility of encounters in the local area, the restrictions and five-year duration were justified. By analogy with R v Ayhan [2011] EWCA Crim 3184, the incorrect recording of the statutory basis did not affect the sentence’s lawfulness because of the transitional provisions in Schedule 27, paragraph 4 of the Sentencing Act 2020.

• Crown Court at Chelmsford: Following a guilty plea on re-arraignment, the appellant was sentenced on 24 March 2023 to six months’ immediate imprisonment and made subject to a five-year restraining order.
• Court of Appeal (Criminal Division): Leave was granted and the appeal was dismissed. The custodial sentence and restraining order were upheld.