R v Michael Trundle

A custodial sentence of less than two years is not automatically to be suspended. The sentencing court must apply the Sentencing Council’s Imposition of Community and Custodial Sentencing Over-arching Guideline and weigh factors on both sides of suspension.

Relevant considerations include risk to the public, the need for immediate punishment, realistic rehabilitation, personal mitigation and harmful effects on others. The court must also assess conduct during any substantial period between offending and sentence, including remaining out of trouble, and give measured regard to custody conditions. Age, illness and recommended rehabilitative work may support suspension. A decision overlooking material considerations may be wrong even where the offence is serious.

The appellant, aged 85 and of previous good character, pleaded guilty to attempted sexual communication with a child. On 5 April 2024 the Crown Court at Reading imposed 10 months’ immediate imprisonment, together with a 10-year Sexual Harm Prevention Order and a victim surcharge.

He appealed against the length of the sentence and the refusal to suspend it. The central issues were whether the custodial term was manifestly excessive and whether the sentencing judge had properly assessed the guideline factors relevant to suspension.

Appeal allowed in part. The 10-month sentence was not manifestly excessive. The sentencing judge was entitled to find that persistence in the offending outweighed the mitigating factors. Although the reduction for the attempted nature of the offence should have preceded the guilty plea discount, the error had no material effect.

1. The court applied the Sentencing Council’s Imposition of Community and Custodial Sentencing Over-arching Guideline. The relevant factors included risk or danger to the public, whether appropriate punishment could be achieved only by immediate custody, poor compliance with court orders, realistic rehabilitation, strong personal mitigation and significant harmful impact on others.
2. R v Ali [2023] 2 Cr.App.R (S) 25 was not authority for the proposition that every custodial sentence of less than two years should be suspended. The decision required consideration of the relevant circumstances and guideline factors. The likely impact of individual or generic prison conditions may also be relevant to sentence length and suspension: R v Manning [2020] EWCA Crim 592.
3. The sentencing judge wrongly placed decisive weight on the pre-sentence report’s risk assessment without considering that the appellant had remained out of trouble for three years, that a Sexual Harm Prevention Order protected the public, and that rehabilitative work had been recommended and remained workable. The appellant’s age, illness, previous good character and the impact of custody on his wife were also material. Taken together with measured regard to current prison conditions, those matters established a realistic prospect of rehabilitation and meant that the sentence should have been suspended.
4. The court suspended the 10-month sentence for 12 months, reduced the rehabilitation activity requirement to a maximum of 26 days, and made the order pursuant to section 287 of the Sentencing Act 2020. The appellant was directed to report to probation and comply with the requirements.

1. Court of Appeal (Criminal Division): On 16 May 2024, allowed the appeal to the extent that the 10-month custodial sentence was suspended for 12 months, with a maximum of 26 rehabilitation activity requirement days: [2024] EWCA Crim 588.
2. Crown Court at Reading: On 5 April 2024, sentenced the appellant to 10 months’ immediate imprisonment, imposed a 10-year Sexual Harm Prevention Order and ordered a victim surcharge.