Dawes, R. v

This is an appeal against a sentence of three weeks imprisonment, suspended for two years, for a breach of a non-molestation order by the Appellant in relation to his former partner on 9 October 2018 whom we shall call (“W”). The Appellant was remanded in custody for 83 days prior to sentence from 27 October 2018 to 18 January 2019. The Appellant submits that he has served the approximate equivalent of a 24-week sentence which was, he says, far in excess of an appropriate custodial term. He therefore submits that it was wrong in law and in principle to impose a sentence in its place because he had already a suspended sentence in this case, because he had already more than served the

He also says that the effect of section 240 ZA(7) of the Criminal Justice Act 2003 ("CJA 2003") is that if a suspended sentence is activated, all this time on remand in custody will

The Appellant had been the subject of a non-molestation order on 3 July 2018 which was renewed on 17 July 2018. He was prohibited from going to W's home or within 100 metres of that address. However, on 9 October 2018, he knocked on the door and walked into the kitchen looking for W. He spoke to a social worker who was there and, despite being asked to leave several times, he refused to do so. He only left when he was told that the Police would be called. He said that he believed that the order had been stopped a few weeks earlier. There is a further alleged breach on 10 October 2018, the allegation being that the appellant shouted abuse at W.

There was a further alleged breach on 10 October 2018, the allegation being that the

Subsequently the Appellant was granted bail on 18 January 2019, by which time the nonmolestation order had been allowed to expire. Further, the prosecution indicated, by a letter on 24 January 2019, that it would accept the account of the Appellant in respect of the 9 October 2018 breach and offer no evidence in respect of the 10 October 2018

At the sentencing hearing before His Honour Judge Berlin on 4 February 2019, the prosecution offered no evidence in respect of the 10 October 2018 breach and the judge entered a not guilty verdict in accordance with Section 17 of the Criminal Justice Act 1967. In respect of the 9 October 2018 breach, the found that this offending fell into

The Judge said that he would do this so that this offence would hang over the Appellant

The Appellant's Counsel, Mr Williams, submits that it was wrong in law and in principle

In amplification, in R v Williams at [9]-[10] Phillips J accepted a submission that: "... it was wrong in principle to impose a suspended sentence order in circumstances where the custodial element of the suspended sentence was

Likewise, in R v Hewitt [2011] EWCA Crim 885 at [23], Hickinbottom J (as he then was) said that

“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 s.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 (1990-91) 12 Cr. App. R. (S.) 88 and Barrett

[2009] EWCA Crim 2213; [2010] 1 Cr. App. R. (S.) 87 (p.572); [2010] Crim. L.R. 159 )). The judge should look elsewhere for an appropriate sentence, which might for example take the form of an immediate term of imprisonment (with a s.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.”

The Appellant therefore submitted that the suspended sentence order should be quashed in his written submissions he submitted it should replace with an immediate term of imprisonment which the Appellant will already have served by reason of his time on remand. However, Mr Williams now submits in his oral submissions that it should be a conditional discharge due to a point of principle is one to which we shall turn later in this

The Crown submits that the sentence was not wrong in law or in principle. It submits that R v Hewitt (supra) is no longer good law since the introduction of post-sentence supervision orders under section 256AA Criminal Justice Act 2003. This is said to be because at the end of the sentence of imprisonment there will be in addition a period of post sentence supervision. The combined length of the licence and post-sentence supervision period will always be 12 months for any offender sentenced to a custodial

Section 256AB of the Criminal Justice Act 2003 provides eight requirements that may be imposed during post-sentence supervision. A breach of such an order may result in a range of penalties including a fine, unpaid work and 14 days' committal to custody. That committal does not take into account any time spent on remand. It is therefore said that the imposition of a suspended sentence for a custodial term, less or equal to a period of

It is said by the Crown that the learned judge was seeking to protect the court's orders,

At the heart of this appeal there is, in our judgment, a stark point. It is that the Appellant has served by way of remand, a period of remand in custody which is the equivalent of double the starting point which the Judge had in mind. Even if the Appellant had served the equivalent of what the Judge had in mind there are no circumstances in this case

The Judge had in mind that in addition to the time spent in custody there should hang over the Appellant a further sentence, however small, to act as a check against further misconduct over the next two years. There was, in our judgment, no justification for in effect punishing the Appellant twice, that is by more than the appropriate custodial sentence followed by a suspended sentence thereafter.

In any event, the Judge does not appear to have grappled with the fact that automatic credit would be given against the suspended sentence for the time served on remand. Accordingly, there was no possibility of activating even the 3 weeks of the suspended sentence. The Crown now submits that this was not pointless because of the impact of a post-sentence supervision order. This has, in our judgment, all the hallmarks of an artificial and retrospective attempt to save the suspended sentenced. It does not grapple with the point about the double penalty. Further, if there is no prospect of the suspended sentence being activated, then it begs the question as to whether the post-sentence

We now return to the original solution of the Appellant of an immediate sentence of imprisonment instead of a suspended sentence. Mr Williams having thought again about the matter, rightly recognises that it Counsel for the Appellant may itself come with a difficulty. It is possible that such a course would offend against section 11(3) of the Criminal Appeal Act 1968 which requires this Court, on appeal against sentence, to exercise its powers such that “taking the case as a whole, the Appellant is not more severely dealt with on appeal than he was dealt with by the below". Mr Williams referred us to the case of R v Barrett [2010] EWCA 2 Cr App R(S) 86 per Keith J at [89], that the Court may not have power to order an immediate sentence of imprisonment,

These concerns have been taken further by this court in the case of R v Thompson [2018] EWCA Crim 639, where this Court considered the effect of imposing an immediate

We are satisfied that Mr Williams is right not to pursue the submission that there should be an immediate sentence of imprisonment. We have to be satisfied that, in accordance with section 11(3) of the Criminal Appeal Act 1968, that a conditional discharge will not

In the case of R v Barrett the view of Underhill J, cited from the case of R v Hemmings,

In our judgment, the overriding point in this case is that it is disproportionate for a suspended sentence to have to hang over the Appellant when he has already been the

We are sufficiently concerned about the application of the issues in R v Thompson and the application of section 11(3) of the Criminal Appeal Act 1968, not to impose an immediate sentence of imprisonment. In our judgment, this will be avoided by imposing a conditional discharge for 12 months. Section 12 of the Powers of Criminal Courts (Sentencing) Act 2000 enables the Court to impose a conditional discharge if, having regard to the circumstances, including the nature of the offence and the character of the

Given the unusual circumstances of this case, this exceptional course of a conditional discharge is open to the Court. We emphasise that the Court takes a serious view of a non-molestation order being broken in the manner which occurred place in the instant case. The conditional discharge does not indicate a leniency in respect of the breach because it is only imposed in the context of the long period served by the Appellant on remand relative to the starting point of the Judge. It is also a sentence which does not offend against the principle in section 11(3) of the Criminal Appeal Act 1968 for the reasons given.as elucidated in given above. It also has the advantage of fulfilling to an

We note that this was one of the solutions cited above in the passage in R v Hewitt. In the context only of the 83 days which the Appellant has served on remand, it seems to us to