R v Tina McDonagh

Fresh offending during the currency of a suspended sentence is an aggravating factor in sentencing the new offences. Taking it into account is not double counting: the suspended sentence reflects the earlier criminality, while the timing aggravates the later offending. On breach, paragraph 14 of Schedule 16 to the Sentencing Act requires activation unless activation would be unjust in all the circumstances. Compliance is the predominant consideration, but compliance with non-punitive requirements need not reduce the activated term. Multiple new offences ordinarily justify full activation, subject to the sentencing judge’s discretion.

The appellant pleaded guilty to four thefts after the magistrates had imposed an initial sentence and purported to activate part of an earlier Crown Court suspended sentence. The error was recognised, the sentences were reopened under section 142 of the Magistrates’ Court Act 1980, and the matters were remitted to the Crown Court. The Crown Court imposed 48 weeks’ imprisonment and activated the nine-month suspended sentence in full.

On appeal, the appellant argued that the sentence for the new offences was manifestly excessive and that full activation was unjust because of her mitigation and compliance with the order. The central issues were the proper sentence for the thefts and whether the suspended sentence should have been activated in full.

1. Disposition. The appeal was allowed in part. The sentence for the four thefts was substituted with 22 weeks’ imprisonment, concurrent on each conviction. The decision to activate the suspended sentence in full was upheld. The victim surcharge was corrected to £154.
2. The sentencing judge was entitled to proceed without a sentencing report, find that the appellant was stealing for resale, and categorise the offences as one category 1 harm offence and three category 2 offences with medium culpability. The repeated and concerted offending justified that assessment.
3. The sentence of 48 weeks for the thefts, twice the upper end of the applicable guideline range, was manifestly excessive. Having regard to the aggravating factors, mitigation and recovery of goods on two counts, the appropriate figure was the top of the 26-week range, reduced by 15 per cent for the guilty pleas to 22 weeks. Treating offending during the currency of the suspended sentence as aggravating the new offences was not double counting.
4. Under paragraph 14 of Schedule 16 to the Sentencing Act, activation is required unless unjust in all the circumstances. The guideline identifies compliance as the predominant consideration and states that full activation is ordinarily appropriate for breaches involving multiple new offences. Applying R v Idrees [2025] EWCA Crim 845, compliance with rehabilitation activity days, as a non-punitive requirement, did not require a reduction. The order contained no punitive requirements whose compliance justified partial activation.
5. The judge retained a discretion to reduce the activated term, but there was no error of principle in declining to do so. Full activation did not create a totality problem because it gave effect to punishment for the earlier offences, while the sentence for the new offences was determined afresh. Reducing the new sentence below six months made it unnecessary to decide whether the Crown Court had power to impose more than six months for an individual theft offence.

1. Court of Appeal (Criminal Division): allowed the appeal in part, substituting 22 weeks’ imprisonment for the four thefts and upholding full activation of the suspended sentence: [2026] EWCA Crim 1145 .
2. Crown Court at Warwick: imposed 48 weeks’ imprisonment for the thefts and activated the nine-month suspended sentence in full.
3. Coventry Magistrates’ Court: initially imposed 23 weeks and purported to activate part of the suspended sentence. After recognising the error, the sentences were reopened under section 142 of the Magistrates’ Court Act 1980 and the matters were remitted to the Crown Court.