R v Damian Payne

In a borderline sentencing case, a judge who departs from a pre-sentence report recommendation should ordinarily explain why, particularly where immediate custody is imposed instead of suspension. The explanation need not be extensive, but must enable the defendant to understand the sentence.

Offences involving attempted child grooming and attempted sexual communication are not categorically incapable of attracting a suspended custodial sentence. The court must assess relevant factors, including rehabilitation prospects, personal mitigation, risk of reoffending and compliance history. It is an error to treat immediate custody as automatically required merely because punishment is necessary.

The appellant pleaded guilty in the Crown Court at Leeds to attempting to meet a child under 16 following grooming and attempting to engage in sexual communication with a child, contrary to section 1(1) of the Criminal Attempts Act 1981. He received immediate custodial sentences of 12 months and six months, to run concurrently.

The sentencing judge considered the sentencing guidelines, a pre-sentence report, medical evidence and personal mitigation, but concluded that the appropriate punishment required immediate custody. The pre-sentence report identified low risks of reoffending and recommended a community-based order. The appellant appealed with leave, arguing that the judge had failed adequately to explain the refusal to suspend the sentence and the departure from that recommendation.

The central issue was whether immediate custody was legally required, notwithstanding the appellant’s personal mitigation, rehabilitation prospects and low risk of reoffending.

Appeal allowed. The error concerned the immediate nature of the custody, not the duration of the custodial terms.

1. A sentencing judge may depart from a pre-sentence report recommendation. Unless the reason is obvious, however, the judge should explain the departure. This is particularly important in a borderline case involving the choice between immediate custody and suspension. The explanation need not be extensive or comprehensive, but the defendant is entitled to understand the reasons for sentence.
2. The sentencing guideline identified a realistic prospect of rehabilitation and strong personal mitigation as factors indicating that suspension might be appropriate. The appellant also presented a low risk of reoffending, had no history of poor compliance with court orders, and had taken significant steps to address and atone for his conduct. The recommendation for a community-based order therefore had obvious merit.
3. The court rejected the proposition that offences of this kind, whenever meriting a custodial term, necessarily require immediate custody. Suspension is not excluded irrespective of the offender’s mitigation, rehabilitation prospects or risk of reoffending. It was an error for the sentencing judge to treat immediate custody as precluding suspension in order to achieve the appropriate sentence.
4. The immediate custodial sentences were quashed. The court substituted sentences of six months on count 1 and 12 months on count 2, suspended for 12 months, together with a rehabilitation activity requirement of up to 30 days. No unpaid work was imposed because of the time already served, and the appellant was entitled to immediate release.

1. Court of Appeal (Criminal Division) — In [2025] EWCA Crim 766, the appeal was allowed. The immediate custodial sentences were quashed and suspended sentences with a rehabilitation activity requirement were substituted.
2. Crown Court at Leeds — Following guilty pleas, the appellant was sentenced by HHJ Phillips KC to immediate custodial terms of 12 months and six months, concurrent.