R v Shkelzen Hajdaraj

Time spent on remand does not automatically count towards a community order under the Criminal Justice Act 2003. It remains material when the court assesses the total punishment imposed. Where it has been significant, further punitive requirements may make a community order excessive. Unpaid work and GPS trail monitoring may be punitive because they restrict liberty, privacy or freedom of movement. Rehabilitative requirements require a separate, fact-specific assessment and are not automatically precluded by prior remand.

An appellate court must not substitute a sentence that deals with an appellant more severely than the sentence appealed from.

The appellant pleaded guilty to being concerned in the production of cannabis. He had performed a limited role under direction for a few days. The Crown Court at Luton imposed an 18-month community order with unpaid work, rehabilitation activity days and GPS trail monitoring.

By sentencing, he had spent 247 days on remand and 228 days subject to a qualifying tagged curfew. He appealed on the basis that the community order was manifestly excessive or wrong in principle when those periods were taken into account. The central issue was whether further punitive requirements were appropriate despite the time already spent in custody and on curfew.

1. Appeal allowed. The high-level community order was manifestly excessive. The appellant had already experienced punishment substantially exceeding the maximum custodial sentence within the applicable guideline range.
2. Although remand time does not automatically count towards a community order under section 149 of the Criminal Justice Act 2003, a community order is itself punishment and can materially restrict liberty. The court applied R v Hemmings [2007] EWCA Crim 2413 and R v Pereira-Lee [2016] EWCA Crim 1705. The 180 hours' unpaid work was punitive. GPS trail monitoring was also punitive because it restricted privacy and freedom of movement. The mandatory nature of every requirement, and the risk of breach proceedings, reinforced the excessiveness of the total sentence.
3. Rehabilitation is different. A court is not barred from imposing rehabilitative requirements merely because the offender has spent substantial time on remand: R v Rakib [2011] EWCA Crim 870. The assessment remains fact-specific. Here, the appellant's poor compliance meant that cancelling the rehabilitation activity requirement caused him no disadvantage.
4. A notional 22-week custodial sentence, after credit for the guilty plea, would have been time served and might otherwise have been appropriate. However, substituting imprisonment for the community order would deal with the appellant more severely, contrary to section 11(3) of the Criminal Appeals Act 1968. The court therefore quashed the community order and substituted a six-month conditional discharge under section 80 of the Sentencing Act 2020, which had expired. The victim surcharge was corrected to £26.

• Court of Appeal (Criminal Division): Allowed the sentence appeal, quashed the community order and substituted a six-month conditional discharge: [2025] EWCA Crim 443.
• Crown Court at Luton: On 24 July 2024, imposed an 18-month community order with 180 hours' unpaid work, 25 rehabilitation activity requirement days and six months' GPS trail monitoring.