Hewitt, R. v

MR JUSTICE HICKINBOTTOM: This is a referral by the Registrar of an application for leave to appeal against an aggregate sentence of 17 months imposed upon the applicant, Steven Hewitt, by His Honour Judge Thorn QC in the Crown Court at Newcastle-upon-Tyne on 24 January 2011. Having heard full argument, we grant leave and shall proceed to deal with the substantive appeal.

The make-up of that aggregate sentence of 17 months is relevant to this appeal, but it would be helpful if we outlined the facts before dealing with the details of sentence.

On 24 June 2010 in the same Crown Court, but before Mr Recorder Hyland QC, having earlier been convicted of one count of making threats to kill, the appellant was sentenced to a 12 month term of imprisonment suspended for 24 months, with supervision and mental health requirements during that period. The complainant in respect of that matter, and the target of the threats, was the appellant's former partner, Cerise Callaghan. Their short relationship ended in August 2009, as a result of an incident of domestic violence for which the appellant was later charged with common assault. He was, however, granted bail in August 2009, with a condition that he did not contact Miss Callaghan.

He ignored that condition, and contacted her by e-mail and telephone. As a result, on 29 September 2009, he was arrested again, and charged with offences against Miss Callaghan under the Harassment Act; but he was again given bail, with a non-contact condition.

He immediately breached that condition by sending the complainant texts, e-mails and phone calls. Despite Miss Callaghan moving address and changing her telephone number, the appellant still contacted her. The contacts became more sexually explicit, and more disturbing. He set up e-mail and social networking accounts in Miss Callaghan's name, from which he not only contacted her, but also her friends.

On 28 November 2009, he telephoned her and said that he would only stop contacting her if she withdrew her complaints against him. During that conversation, he said that he would murder her, a threat which she believed he was capable of carrying out. That threat to kill founded the charge in respect of which the appellant was sentenced to the suspended sentence to which we have referred. In respect of that charge, he spent a considerable time, now agreed at 204 days, detained on remand.

That 12 month suspended sentence was imposed, as we have said, on 24 June 2010. About three months later, in the early hours of 3 October 2010, the police were called to a disturbance in Newcastle city centre in which the appellant, who had consumed a large quantity of alcohol, was involved. During the police attempts to detain him, he struggled and kicked out, making contact with a police officer and causing him minor injury. He spat at a police inspector. During the course of the evening, he also damaged two taxis by jumping on them and punching them, causing £90 worth of damage to one and £250 to £300 worth of damage to the other. As a result, he was charged before Newcastle Magistrates' Court with two offences of assaulting a police officer in the execution of duty, and two offences of criminal damage. He was committed to the Crown Court for sentencing for those offences and for the breach of a suspended sentence by the commission of new offences during the operational period of the order, and he was remanded in custody.

However, when the matter came before the Crown Court on 19 November 2010, Mr Recorder Hutton QC deferred sentence to March 2011, with the purpose of seeing how the appellant progressed under the supervision requirement of the recently imposed suspended sentence, which was allowed to continue unamended. The appellant was consequently that day released on bail pending the deferred sentence.

A week later on 27 November, he was again out in Newcastle city centre, when he took offence at a roped-off area outside a nightclub which he considered obstructed the public footpath. He picked up and threw one of the stands to which the rope was attached. The police were called and attended, but the appellant did not go quietly; and he struggled when they later sought to arrest him. He kicked out and struck an officer three times, causing bruising to his shin. He also made aggressive and threatening remarks to other officers when detained at the police station.

As a result of those incidents, he appeared before the Newcastle Magistrates' Court on 13 December 2010 charged with (i) assaulting a police officer, and (ii) obstructing a police officer in the course of his duty. He again pleaded guilty and was again committed to the Crown Court for sentence, with the further breach of the suspended sentence order.

Consequently, on 24 January 2011, the appellant appeared before Judge Thorn in the Crown Court at Newcastle, and was sentenced as follows:

Breach of the suspended sentence order: 10 months of the original 12 months suspended sentence was activated. That reduction was expressly to mark the extent to which the appellant had previously worked to comply with the supervision and curfew requirements in the order.

Two charges of assaulting a police constable on 3 October 2010: 4 months' imprisonment concurrent with each other, but consecutive to the 10 months' imprisonment activated on the suspended sentence.

Two charges of criminal damage on 3 October 2010: 2 months' imprisonment, concurrent with each other and concurrent with the other sentences imposed.

Assaulting a police officer on 27 November 2010: 3 months' imprisonment, consecutive to the terms imposed for the breach of the suspended sentence and the October assaults.

12. Obstructing or resisting a police officer on 27 November 2010: 3 months' imprisonment, concurrent with the other sentences imposed.

That is how the aggregate terms of 17 months to which we have referred was made up.

Additionally, the judge gave a direction under section 240 of the Criminal Justice Act 2003 that 80 days, which he understood had been spent on remand in respect of the charges arising out of 3 October and 27 November 2010 incidents, should count towards the time to be served in custody under the sentence. (We should say that a recalculation has now been done, and the correct number of days spent on remand is in fact 102.) Judge Thorn made no such order in respect of any days spent on remand for the charge of threats to kill, despite activating the suspended sentence that had been imposed as a result of that conviction.

The appellant now relies upon four grounds of appeal against those sentences.

The first concerns the manner in which the judge dealt with time spent on remand, when he activated the suspended sentence. Mr Smith Reid on behalf of the appellant submitted that the judge erred in failing to give any credit for any of the time spent on remand prior to the imposition of the suspended sentence order on 24 June 2010.

By virtue of section 240 of the 2003 Act, unless the court considers it is just in all of the circumstances not to give such a direction, when a court sentences an offender to imprisonment it must direct that the number of days which the offender was remanded in custody in connection with the offence or a related offence shall count as time served by him as part of the sentence. When the court is considering not giving such credit, then it is of course incumbent on the judge to give the defendant an opportunity to make submissions on the exercise of that discretion; and, if the court then exercises its discretion not to give a direction, then it must give its reasons (section 240(6)).

By section 240(7), for the purposes of such crediting procedure, a suspended sentence is to be treated as a sentence of imprisonment when it "takes effect" under paragraph 8(2) of Schedule 12 to the 2003 Act, i.e. when it is activated following breach by a further conviction or failure to comply with the community requirements of such a sentence. Time in custody on remand prior to the imposition of a suspended sentence therefore generally falls to be taken into account when sentence is activated, rather than imposed. That makes sense, because, at the time of imposition, the court may not be in a position to decide on a fully informed basis whether time on remand should or should not be ordered to count: Fairbrother [2007] EWCA Crim 3280; [2008] 2 Cr App R (S) 43, and Carruthers v Hampshire Probation Service [2010] EWHC 1961 (Admin). In Carruthers, Wyn Williams J (with whom Moses LJ agreed) said this (at paragraph 38):

With that, we respectfully agree. When a judge imposes a suspended sentence, in determining the appropriate length he should not ordinarily give credit for days spent on remand. Those should be taken into account by the judge activating the sentence who should, in the usual way, give a section 240 direction with the number of days specified, unless it would be unjust to do so. That, it seems to us, is the intent of the statutory scheme.

We have been referred today to the judgment of this court (Thomas LJ, Bean and Sharp JJ) in Whitehouse [2010] EWCA Crim 1927. Mr Smith Reid submitted that this case suggested (albeit obiter) that it might be appropriate for a judge, when imposing a suspended sentence, to take into account time spent on remand. Bean J, giving the judgment of the court, said this (paragraph 11):

We respectfully understand the thinking behind those remarks. However, we consider that the appropriate procedural course to effect it would be for the judge to impose the sentence merited by the offence (in the example, two years) and suspend it, with an indication that, if there be a breach in the future sufficient to warrant activation of the sentence, then the defendant could expect to have a section 240 direction in his favour so that, on activation, the amount of future time spent in custody would be the net amount (in the example, only six rather than 12 months – or whatever the figure might be, to reflect such matters as past compliance with the supervision requirements of the order). It was suggested in Whitehouse itself that that might be the appropriate course (see paragraph 14). Certainly, if such a sentence is effected in another way, then the imposing judge must make it very clear what he has done and why.

In any event, a judge activating a suspended sentence should not assume that days on remand were taken into account by the judge imposing the sentence when fixing the length: although we accept that, where it is clear and obvious that the judge imposing the sentence did in fact do so, it would be open to the activating judge not to make a section 240 direction on the basis that it would be unjust to do so, i.e. it would be unjust for the defendant to obtain double credit for the days he had in fact spent on remand. However, we stress that such a course would, in our judgment, only be open to the activating judge where it is clear that the judge imposing the suspended sentence has, contrary to the practice we have outlined, taken those days into account in assessing the length of the suspended sentence he imposed.

The other side of that coin is that, of course, if the judge imposing the sentence extraordinarily considers there are good reasons for taking days spent on remand into account in fixing the length of the sentence, he must make clear that he has taken that time into account, the number of days for which he has given credit, and his reasons for doing so.

Whilst, in our view, when imposing a suspended sentence, the sentencing judge should not ordinarily take into account days spent on remand when assessing the length of sentence to impose, it is nevertheless important that he should know the length of time spent on remand. That is because, if the defendant has already been in custody on remand for a period longer than that which he would serve in prison in respect of a custodial sentence of a length merited by the offence, then the judge must consider whether it would be appropriate to impose a suspended sentence at all. It is important that he does not impose a suspended sentence that may either be more severe in its custodial impact than the maximum appropriate sentence of immediate custody, or alternatively be of no practical effect on activation (and hence no incentive to comply) because of the effect of section 240. The imposition of a suspended sentence in these circumstances would, in our view, usually be wrong as a matter of principle (see McCabe (1988) 10 Cr App R (S) 134, Peppard (1990) 12 Cr App R (S) 88 and Barrett [2010] EWCA Crim 365; [2010] Cr App R (S) 86)). The judge should look elsewhere for an appropriate sentence, which might for example take the form of an immediate term of imprisonment (with a section 240 direction), a community order, or a conditional or absolute discharge. The appropriate sentence in a specific case will of course depend upon the particular circumstances of that case.

In any event, for those reasons, even when a suspended sentence is being considered and prior to its imposition, the court should always be informed of days spent on remand, to enable the judge to reaching an informed decision as to the appropriate sentence. It is, of course, the obligation of both the prosecution and the defence to ensure the court has all information relevant to sentence, including days spent on remand (see Fairbrother, at paragraph 6).

In this case, when activating the suspended sentence, Judge Thorn appears from his comments to have assumed that, in assessing the length of the sentence he imposed, Recorder Hyland would have set off the days spent on remand.

We have had the advantage of a transcript of the remarks of the Recorder when he imposed the sentence. He indicated that it was, in his view, inevitable that a sentence of imprisonment must be passed. Given the history and circumstances of the offence to which we have alluded, we respectfully agree. However, he said that he had concluded that, as serious as the offending was, "help and rehabilitation" were his primary concerns. As a consequence, he imposed the suspended sentence with the community requirement which we have indicated. In relation to the future, the Recorder said that any breach of the order would inevitably lead to immediate imprisonment, and indeed he reserved the matter to himself; although, in the event, the matter does not appear to have come back to him.

In his sentencing comments, the Recorder did not mention days on remand; nor do those observations suggest that they were in his mind at all. Before us today, Ms Scott-Bell for the Crown has indicated that she has spoken to counsel who prosecuted, and there is an indication that days on remand were at least mentioned to, if not pressed upon, the Recorder: but there is no specific evidence before us as to that, nor the extent to which the judge took any time on remand into account, nor (insofar as he did take any time into account) the number of days for which he gave credit. The number of days has only been confirmed and agreed at 204 very recently (although we should say that Ms Scott-Bell told us that the number thought to have been correct at the time of the original sentence was in the same region, namely 175).

Ms Scott-Bell made two submissions that we do accept. First, we accept her submission that a sentence as short as 12 months for these serious threats to kill appears to be very lenient; but, as we have indicated, the Recorder indicated that he intended to be merciful. Second, we accept the submission that the number of days the appellant spent on remand (whether 175 or 204) would mean that any term activated of the suspended sentence would inevitably be wiped out by the credit that would have to be given by virtue of section 240. Therefore, with the benefit of hindsight, the suspended sentence order may appear curious or even empty, and it may not have had the effect that the Recorder thought and hoped it had.

Nevertheless, in all of the circumstances, on the material that was before Judge Thorn and is now before us, we do not consider that it can safely be assumed that the Recorder did take into account the days the appellant spent on remand when he fixed the length of sentence at 12 months. That assumption is neither clear, nor obvious: and we consider that the judge erred by working on the basis of such an assumption.

Of course, each case turns on its own facts, but the facts of this case are, in our view, substantially indistinguishable from those of Shariff [2009] EWCA Crim 2687, where the appellant was sentenced to 36 weeks suspended for two years, with various supervision and curfew requirements that he regularly breached. On the breaches, the full 36 week sentence was activated without any section 240 direction, although he had spent 104 days in custody on remand. The judge who activated the suspended sentence found it was inconceivable that the judge imposing the sentence had not taken into account the days on remand in fixing it, although there was no evidence that he had in fact done so. He in effect made the same assumption as did Judge Thorn in this case. This court (Simon and Royce JJ) held that, in those circumstances, there was no proper basis for directing that the days spent on remand should not count towards the sentence. There was a similar response in Fairbrother. Our conclusion effectively reflects the conclusion of those different constitutions of this court on similar facts.

In the circumstances of the case before us, for the reasons we have given, we consider that the judge who activated the sentence was wrong in principle to find, as he must have done, that it was unjust in all the circumstances to give a direction that days on remand count towards the sentence under section 240. On this ground we allow the appeal, and in relation to the 10 months activated on the suspended sentence, with which we do not interfere, we make a direction that the 204 days spent on remand count towards that sentence.

The second ground of appeal is that the sentence imposed for obstructing a police officer in the execution of his duty on 27 November 2010 is wrong in principle and unlawful. The maximum sentence for such an offence is one month (section 89(2) of the Police Act 1996); and, consequently, although it was imposed as a concurrent sentence and therefore does not affect the aggregate length of sentence, we allow the appeal on this ground. We replace the three months imposed with a sentence of one month, concurrent with the other sentences.

We can deal with the final two grounds conveniently together. First, it is submitted that the aggregate length of the sentence for the offences committed on 3 October and 27 November 2010 (7 months), was unlawful because the offences were committed to the Crown Court under section 6 of the Powers of Criminal Courts (Sentencing) Act 2000, so that the maximum sentence that could have been imposed was the maximum available to the magistrates, i.e. 6 months. Second, it was submitted by Mr Smith Reid, although without great force or enthusiasm, that the 4 month concurrent sentences imposed for the assaults on the police in the October 2010 episode were manifestly excessive in any event.

We do not find this last ground in itself compelling. We have outlined the nature of the offences, which were, in our view, of some seriousness. But, in any event, the sentencing court was properly able to take into account the appellant's antecedents. He has 15 previous convictions since 1995, primarily for being drunk and disorderly, criminal damage, assaulting police officers and resisting arrest. In 2009, he was convicted of assault occasioning actual bodily harm and was sentenced to a 12 month community order with a mental health requirement. Later that year, he was sentenced to 80 days' imprisonment for assaulting a police officer and common assault. The appellant has been diagnosed with Asperger's Syndrome, which may in part explain his inability properly to respond to everyday circumstances he faces; but he has been given a number of opportunities to address both his mental health and alcohol issues. It is clear from the report that we have seen that he has singularly failed to engage with those who have tried to help him.

In those circumstances, we do not consider any of the sentences imposed for convictions that arose out of the October and November 2010 episodes as excessive in substance.

However, the appellant having been committed under section 6 of the 2000 Act, the judge's powers were limited to those available to the magistrates who committed him. By section 133 of the Magistrates' Courts Act 1980, all of the offences being summary only, the maximum aggregate term that the justices could have imposed was 6 months. That was also, therefore, the maximum aggregate sentence that the Crown Court could impose on a section 6 committal.

We consequently allow the appeal in respect of those matters to the following extent. We vary the sentences of 4 months for each of the 3 October 2010 assaults, and replace those sentences with ones of three months; again to run concurrently with each other, but consecutive to the sentences activated on the suspended sentence and imposed for the 27 November 2010 matters. That will reduce the aggregate sentence for the matters committed under section 6 to 6 months.

Therefore, in summary, this appeal will be allowed, and the sentences imposed by the Crown Court will be varied as follows:

Breach of the suspended sentence order: 10 months of the original 12 months suspended sentence will be activated, with a direction that 204 days spent on remand count towards that sentence.

Two charges of assaulting a police constable on 3 October 2010: 3 months' imprisonment concurrent with each other, but consecutive to the 10 months' imprisonment activated on the suspended sentence.

Two charges of criminal damage on 3 October 2010: 2 months' imprisonment, concurrent with each other and concurrent to the other sentences imposed.

Assaulting a police officer on 27 November 2010: 3 months' imprisonment, consecutive to the terms imposed for breach of the suspended sentence and the October assaults.

Obstructing or resisting a police officer on 27 November 2010: one month's imprisonment concurrent with the other sentences imposed.

In relation to the 6 month aggregate sentence imposed in relation to (ii) to (v), we make a direction under section 240 that 102 days spent on remand shall count towards that sentence.

The appeal is allowed to that extent.