R v Barry Anthony Drain

A sentencing court must follow a relevant definitive guideline and, where an offence-specific guideline applies, sentence within its overall offence range unless that would be contrary to the interests of justice. Selecting the seriousness category identifies a starting point only. It does not impose a separate obligation to remain within that category range.

Previous offending must not be punished again, but it may make a current offence more serious in its proper context. A substantial upward adjustment may therefore be justified, but remains subject to appellate review for manifest excess. Suspended sentences activated after further offending will ordinarily run consecutively unless that would be unjust.

The applicant pleaded guilty at Winchester Crown Court to breaching a restraining order and damaging property. The breach formed part of repeated intimidation of two neighbours, including a mother and her young teenage daughter. It occurred shortly after suspended custodial sentences and a fresh restraining order had been imposed for offending against the same victims.

Edis LJ imposed 24 months’ imprisonment for the breach offence, after a guilty-plea reduction from 30 months, imposed no separate penalty for damage, and activated concurrent suspended sentences totalling eight weeks. The applicant appealed against his total sentence. The central issue was whether a sentence above the category B2 range was manifestly excessive despite remaining within the guideline’s overall offence range.

1. The appeal was allowed in part. The 24-month sentence for breach of the restraining order was manifestly excessive. It was quashed and replaced with 16 months’ imprisonment, representing a provisional sentence of 20 months reduced by 20 per cent for the guilty plea.

2. Sections 59 and 60 of the Sentencing Code require a court to follow a relevant definitive guideline and, where an offence-specific guideline applies, to impose a sentence within the overall offence range unless the interests-of-justice exception is satisfied. The category which most resembles the case identifies the starting point only. There is no separate duty to remain within its category range.

3. The sentencing judge had selected category B2 and imposed a sentence within the guideline’s overall range of a fine to four years’ custody. The sentence therefore followed the guideline. It did not require a finding that departure from the guideline was in the interests of justice merely because it exceeded the B2 category range.

4. The applicant’s prior offences could not be punished again, but they made the current breach substantially more serious in context. The very serious harm to the victims, the rapid repetition of offending against them, and the failure of earlier disposals justified a substantial increase from the category starting point. The court considered that the harm could properly have been characterised as very serious, placing the case in category B1. Nevertheless, the increase from 12 weeks to 30 months for the single breach offence exceeded what those circumstances justified.

5. Under paragraphs 13 and 14 of Schedule 16 to the Sentencing Code, the suspended sentences had to be activated in full unless that would be unjust. They were to run consecutively to the new sentence. No separate penalty was imposed for the damage offence, and the five-year restraining order remained in force.

• Court of Appeal (Criminal Division) — granted leave and allowed the sentence appeal in part. It quashed the 24-month sentence, substituted 16 months’ imprisonment for the breach offence, and ordered the activated suspended sentences to run consecutively.
• Crown Court at Winchester — the applicant pleaded guilty on 15 January 2024. On 26 February 2024, Edis LJ imposed 24 months’ imprisonment for breach of a restraining order, with concurrent activation of suspended sentences totalling eight weeks. No citation for that decision was stated.