Fiona Hodge & Ors v R

Section 277A of the Sentencing Act 2020 creates a strong presumption that an adult custodial sentence of 12 months or less will be suspended. The sentence must first be assessed for seriousness and length. The presumption is displaced only by exceptional circumstances relating to the offence or offender which justify immediate custody. Exceptional culpability or harm, or an exceptional need for deterrence, may qualify. Death or serious injury alone will not ordinarily suffice where it is an element or consequence of the offence, although it remains relevant in a holistic assessment. Multiple offences and victims may together create exceptional circumstances. A sentence just above 12 months requires particular scrutiny because it removes the statutory protection. Where the sentence exceeds 12 months, the presumption does not apply.

The court heard three applications for leave to appeal against sentence by Fiona Hodge, Jason Carter and Morne Potgieter, and a reference by the Attorney General under section 36 of the Criminal Justice Act 1988 concerning James McClements. All four cases concerned adult offenders convicted after section 277A of the Sentencing Act 2020 came into force.

Hodge and Carter had received immediate sentences of 12 and 13 months respectively for causing death by careless driving. Potgieter received a concurrent 12-month sentence for causing serious injury by careless driving and related driving offences. McClements received eight months suspended for misconduct in a public office after exploiting a vulnerable woman while serving as a police officer. The central issues were the construction of section 277A, the meaning of exceptional circumstances, and the correct sentence in each case.

1. Section 277A. The court must first decide whether custody is necessary and impose the shortest proportionate term. Where the term is 12 months or less and no statutory exclusion applies, suspension is mandatory unless exceptional circumstances relating to the offence or offender justify immediate custody.
2. Exceptional circumstances. The inquiry is holistic. Exceptional culpability or harm, or an exceptional public interest in deterrence, may justify immediate custody. The court must identify and explain circumstances which truly make the case exceptional. Death is relevant but cannot alone be decisive where it is an element or consequence of the offence. Multiple offences must be assessed as a whole.
3. Hodge and Carter. Death by careless driving, without further exceptional circumstances, did not justify immediate custody. Hodge’s 12-month sentence was suspended for two years. Carter’s sentence was reduced from 13 months to nine months and suspended for two years. His disqualification was reduced to two years. A defendant convicted after trial receives no credit for a guilty plea which was never entered.
4. Potgieter. Two very serious injury offences, multiple people exposed to risk, driving over the alcohol limit and with cocaine metabolite present, and the offender’s recent driving record constituted exceptional circumstances. The 12-month immediate sentence was upheld.
5. McClements. The duration and nature of the misconduct, repeated misuse of police information, exploitation of a vulnerable victim, and discouragement of a report of breach of bail justified a sentence exceeding 12 months. Section 277A therefore did not apply. The sentence was increased to 15 months’ immediate custody. The court did not decide whether the established approach that police misconduct in public office will almost always attract immediate custody remains applicable where the sentence is 12 months or less; observations on that issue were obiter.

• Court of Appeal (Criminal Division): granted leave in the three sentence appeals and the Attorney General’s reference. Hodge’s appeal was allowed and her immediate sentence was replaced with a suspended sentence. Carter’s appeal was allowed and his sentence and disqualification were reduced, with the sentence suspended. Potgieter’s appeal was dismissed. The reference concerning McClements was allowed and his suspended sentence was quashed and replaced with immediate custody.
• Crown Court: Hodge, Carter and Potgieter were sentenced to immediate custody; McClements was sentenced to eight months’ imprisonment suspended for 12 months with unpaid work.