R v Elliott Richardson

On activation of a suspended sentence, the statutory victim surcharge is calculated by reference to the imprisonment imposed for the new offences, not consecutive imprisonment imposed on activation. The applicable charging regime is determined by the date of the earliest relevant offence.

In considering a challenge to activation, factors already present when the suspended sentence order was imposed do not justify a reduction unless they are new and exceptional. A sentencing judge need not expressly cite the guideline concerning mental disorder, developmental disorder or neurological impairment where the sentencing exercise shows that the relevant impairments have in substance been considered.

The applicant pleaded guilty to dwelling burglary and fraud. He committed the offences during the operational period of a 16-month suspended sentence imposed for earlier fraud and burglary offences.

At Plymouth Crown Court, the judge imposed 24 months’ imprisonment for the new offences and activated the suspended sentence for a reduced consecutive term of 14 months. The applicant sought leave to appeal against sentence. He relied on his impairments, compliance with probation, alleged errors in culpability and harm assessment, his previous convictions, and the overall length of custody.

The Court of Appeal considered whether any ground disclosed a sentence that was manifestly excessive or contrary to principle. It also considered the correct statutory victim surcharge.

1. The application for leave to appeal against sentence was dismissed. The court agreed with every part of the single judge’s refusal reasons. None of the proposed grounds was properly arguable, and the total sentence was neither manifestly excessive nor contrary to principle.

2. In deciding whether to activate the suspended sentence, the relevant guideline permitted reliance only on new and exceptional factors or circumstances that had not existed when the suspended sentence order was made. The applicant had identified no such factor. The sentencing judge was therefore entitled to activate the term.

3. The judge had given credit for the applicant’s engagement with probation. It was not arguable that a greater reduction was required. Although the judge had not expressly referred to the guideline concerning mental disorder, developmental disorder and neurological impairment, he had expressly addressed the applicant’s difficulties and allowed a substantial discount from the sentence otherwise indicated by the offending, record and escalation in offending.

4. The victim surcharge was varied. Under R v Abbott, Hawker, Harrison [2020] EWCA Crim 516, the surcharge had to be based on the 10-month sentence for the new offences alone. It could not include the consecutive 14-month term imposed on activation of the suspended sentence. Given the earliest relevant offence date, the correct surcharge was £156, which was substituted for £228.

• Court of Appeal (Criminal Division): The application for leave to appeal against sentence was dismissed in [2024] EWCA Crim 1613, save that the statutory victim surcharge was reduced from £228 to £156.
• Crown Court at Plymouth: On 12 August 2024, the applicant received 24 months’ imprisonment for the new offences. A 16-month suspended sentence was activated for a reduced consecutive term of 14 months.
• Plymouth Magistrates’ Court: On 29 February 2024, following guilty pleas to fraud and dwelling burglary, the applicant was committed for sentence.