R v John Leroy Ferns

When deciding whether to suspend a custodial sentence, the question is not whether immediate imprisonment is the only available option. The question is whether, considering all the circumstances, immediate imprisonment is the only appropriate punishment. An appellate court should not interfere merely because another judge might have suspended the sentence. It must identify an error of principle or a manifestly excessive sentence. A sentencing judge may consider a persistent lying defence when assessing rehabilitation and culpability. An offender is not at fault for exercising the right to contest the charge, and loss of guilty-plea credit must not be treated as punishment for doing so. Delay may justify a reduction only where it was unreasonable, not the offender’s fault, and caused detriment; the court must avoid double counting.

The applicant was convicted at Preston Crown Court of assault occasioning actual bodily harm contrary to section 47 of the Offences Against the Person Act 1861 and sentenced to nine months’ immediate imprisonment. The offence involved a single unexpected punch which caused serious dental injury. The sentencing judge considered the applicant’s persistent lies, previous convictions, personal mitigation, the victim’s vulnerability and the Sentencing Guidelines.

The applicant challenged the refusal to suspend the sentence and the uplift of the guideline starting point. The Registrar referred an additional issue concerning whether the judge’s comments about delay and the absence of guilty-plea credit contravened the Overarching Principles on Delay. The central issues were whether the sentencing discretion had been exercised unlawfully, whether the uplift was justified, and whether the delay guidance had been breached.

Application for permission to appeal refused. The sentence was stern but neither wrong in principle nor manifestly excessive.

1. Suspension. The sentencing judge had exercised the discretion whether to suspend the sentence and had considered the applicable guideline factors. The correct question was whether, in all the circumstances, immediate imprisonment was the only appropriate punishment, regardless of the existence of other sentencing options. That question differs from asking whether imprisonment is the only option. Another judge might have suspended the sentence, but that did not establish an error of principle.
2. The judge was entitled to find that there was no realistic prospect of rehabilitation because the defence had involved persistent lies over many years. She was also entitled to conclude that only immediate custody would provide appropriate punishment. The unexpected attack on a relatively vulnerable victim, the serious dental injury, the victim’s vulnerability, and the attack in a place where he was entitled to feel safe supported the sentence.
3. Uplift. The judge was entitled to increase the starting point from 36 weeks to 12 months. The attack in the communal hallway was akin to an attack in the victim’s own home. The victim’s social problems and vulnerability were plainly aggravating factors. The notional term remained within the guideline range, whose upper limit was 18 months.
4. Delay. The judge did not breach the Overarching Principles on Delay. The guidance did not attach fault to the applicant for refusing to admit the offence and putting the prosecution to proof. The judge’s reference to loss of credit reflected the applicant’s decision to contest the charge; it did not double count factors. There was no evidence that the delay had detrimentally affected the applicant, so no reduction was required.

• Preston Crown Court: the applicant was convicted on 18 January 2023 and sentenced on 18 April 2023 to nine months’ immediate imprisonment.
• Court of Appeal (Criminal Division): the application for permission to appeal was referred to the Full Court and refused on 25 May 2023. The sentence was upheld.