R v Stefan Barrington Braithwaite

A sentencer must be informed of, and give effect to, credit for time served on remand or under a qualifying curfew when identifying the correct sentence. A suspended custodial sentence is wrong in principle where the applicable credit already exceeds its custodial term. It provides no effective incentive during the operational period and may be incapable of meaningful activation.

On an offender’s appeal, Criminal Appeal Act 1968 section 11(3) prevents substitution of a community order where, taking the case as a whole, that would deal with the appellant more severely than the original sentence. A conditional discharge may instead be substituted where appropriate.

The applicant pleaded guilty in the Crown Court at Manchester Minshull Street to affray contrary to section 3 of the Public Order Act 1986. He received 13 months’ imprisonment, suspended for 18 months, with a ten-day Rehabilitation Activity Requirement and compensation of £500.

After sentence, it emerged that he had been subject to a qualifying curfew from 1 June 2021 until sentence. Its duration exceeded the custodial term. A late application to vary the sentence was correctly refused in the Crown Court because the statutory period for reconsideration had expired.

The applicant sought leave, with an extension of time, to appeal against sentence. The central issue was whether a suspended sentence was wrong in principle where qualifying-curfew credit exceeded its custodial term, and what lawful substitute could be imposed on appeal.

1. Appeal allowed. The court granted an extension of time and leave to appeal. It quashed the 13-month suspended sentence and its Rehabilitation Activity Requirement, substituting a conditional discharge for 12 months. The compensation order of £500 remained in force.

2. The court followed the approach identified in R v Williams [2018] EWCA Crim 2396, R v Dawes [2019] EWCA Crim 848, R v Blaine Latta [2023] EWCA Crim 1171, and R v Leitch [2024] EWCA Crim 563. A sentencing court must be reminded of relevant time served in custody or subject to a qualifying curfew so that it can identify the correct sentence.

3. The judge had not been told of the qualifying-curfew period. Under section 240A of the Criminal Justice Act 2003, it was creditable against any custodial sentence. Because the period exceeded 13 months, the suspended sentence was wrong in principle. It supplied no effective incentive against further offending, and activation after breach would be rendered nugatory by the available credit.

4. The court could not substitute a community order. Applying R v Dawes [2019] EWCA Crim 848, that course would breach section 11(3) of the Criminal Appeal Act 1968. Having already served credit exceeding the custodial term, the appellant would thereby be dealt with more severely on appeal than below.

5. A 12-month conditional discharge was the appropriate replacement. It preserved the possibility of re-sentence for this offence if the appellant committed a further offence during that period.

• Court of Appeal (Criminal Division)—The appeal against sentence was allowed. The suspended sentence and Rehabilitation Activity Requirement were quashed and replaced by a 12-month conditional discharge: [2024] EWCA Crim 1193.

• Crown Court at Manchester Minshull Street—On 16 April 2024, the applicant received 13 months’ imprisonment suspended for 18 months, with a ten-day Rehabilitation Activity Requirement and compensation of £500.