R v David Ian Jode

LORD JUSTICE LEWIS: On 12 September 2025 in the Crown Court at Truro the appellant David Ian Jode was sentenced for three offences. One was an offence of possessing a firearm with intent to cause fear of violence, for which he was sentenced to 18 months' imprisonment. One was an offence of assault occasioning actual bodily harm, for which he was sentenced to eight months' imprisonment to be served concurrently, and no separate penalty was imposed for a third offence of damaging property. The appellant appeals against sentence with the leave of the single judge. The sole issue in the appeal is whether the judge erred in the way he approached and determined the question of whether the sentence could be suspended.

The facts can be stated shortly. The appellant and another person, Nicola Niven, used to work together. They would meet up occasionally. In March 2023 the victim was out in Truro with two friends when she met the appellant by chance. She and her friends went back with the appellant to his flat. The two friends later left.

The appellant sat next to the victim and asked her for a kiss. She let him kiss her and said, laughingly, "You do know nothing's going to happen." The appellant stood up and took one of the three imitation guns that he owned from the wall. He put a gun to Miss Niven's face and said, "Get the fuck out." She asked if he was joking. He cocked the gun and said he was not joking. He then struck her to the face causing pain and breaking her glasses. He then said he did not know why he had done it and apologised. The victim left the flat and went to hospital. The appellant was subsequently arrested and a number of imitation firearms were seized from his flat.

The judge determined that the appropriate sentence was 18 months' imprisonment for the imitation firearms offence and eight months for the assault to be served concurrently. No complaint is made about the length of those sentences and it is not necessary therefore to analyse the reasoning of the judge in that regard. The judge also considered whether the sentence should be suspended. He said this:

The judge did not have a pre-sentence report available. The reasons for that have been explained by Miss Johns, counsel for the appellant, in her advice on appeal and expanded upon this morning. She said that the judge had ordered a pre-sentence report following the appellant's guilty plea (presumably because the judge thought it was necessary to have such a report) but the appellant did not attend the appointment with probation on 1 September because he was ill. He was given a new appointment but attended on the wrong day. The judge, through his clerk, had said the report could be prepared on the day of sentencing. The appellant was seen by a probation officer at court on the morning of his sentencing hearing and she advised that he be assessed further to see if he would benefit from a mental health requirement and an alcohol treatment requirement and that would require an adjournment of the sentencing hearing of approximately four weeks to get those assessments done.

The judge did not adjourn or require the preparation of a pre-sentence report or the carrying out of the assessments that had been recommended. He sentenced the appellant in the way we have described. When leave was granted by the single judge, he did order that a report be prepared and we have that report, a mental health treatment suitability assessment and recommendation and an alcohol treatment requirement assessment. We asked Mr Jode questions about that assessment this morning.

In her written and oral submissions on behalf of the appellant, Miss Johns submits that the judge erred in proceeding without the benefit of a pre-sentence report. He obviously had thought that one was necessary because he ordered one and thought that one would be available in court on the day. As a result of the failure to obtain the pre-sentence report however, he did not properly consider the relevant factors set out in the Sentencing Council Guideline on the Imposition of Community and Custodial Sentences.

Miss Johns drew attention to the provision of the guideline dealing with pre-sentence reports and which say that if what they describe as a quality report cannot be delivered on the day the sentencing hearing should be adjourned. She submitted that the judge had not been in a position to and had not properly assessed the factors indicating whether or not a suspended sentence was appropriate. Further, she submitted that the judge was wrong to rely in the circumstances on the failure to meet probation officers as indicating that the appellant did not have a realistic prospect of rehabilitation.

Section 230 of the Sentencing Act 2020 provides that a court must not pass a custodial sentence unless it is of the opinion that the offence, or a combination of offences, is so serious that only a custodial sentence can be justified. Section 30 provides that a court must obtain and consider a pre-sentence report unless in the circumstances of the case it considers that it is unnecessary to do so. Section 277 of the Act provides that where a court passes a sentence of imprisonment it may suspend a sentence if the term of imprisonment is at least 14 days and not more than two years. Section 59 of the Act provides that a court must follow any sentencing guidelines which are relevant unless satisfied that it is not in the interests of justice to do so.

The Sentencing Council has issued a guideline on the imposition of community and custodial sentences. The current guideline is effective from 1 September 2025, that is it came into effect shortly before the sentencing hearing in this case. There was a previous guideline.

Section 3 of the current guideline deals with pre-sentence reports and in effect summarises the requirements of section 30 and says that when considering a community or custodial sentence a court must request and consider a pre-sentence report unless that is considered unnecessary. It goes on to say:

Section 3 then goes on to say that pre-sentence reports are necessary in certain types of cases, including amongst others where the case would benefit from an assessment of the nature and causes of the offender's behaviour, his personal circumstances and "any factor that may be helpful to the court in considering the offender's suitability for different sentences or requirements". It says that a report may be unnecessary if the court considers that it has enough information about the offence and the offender.

The guideline says that pre-sentence reports can be verbal or written. It notes that adjournments may be required to allow for the necessary information to be collected. It says that the court should liaise with the probation service on whether a quality report can be delivered on the day, and adjourn the case if it cannot. The need for an adjournment may be reliant on the availability of third parties to gather necessary information.

Dealing with questions of substance rather than procedure, section 8 of the guideline deals with the three questions that a court should ask if it is considering whether a custodial sentence should be imposed. The first two are whether a custodial sentence is unavoidable and what is the shortest term commensurate with the seriousness of the offence. The third question is the question that is relevant in this case, namely can the sentence be suspended? The guideline says that the court should weigh the relevant factors listed to consider whether it is possible to suspend the sentence. The factors indicating that it may be appropriate to suspend a custodial sentence are the following: a realistic prospect of rehabilitation in the community, the offender does not present a high risk of re-offending, strong personal mitigation and immediate custody will result in significant harmful effects upon others. The factors indicating that it may not be appropriate to suspend a custodial sentence are the following: the offender presents a risk to any person, the seriousness of the offence means that the appropriate punishment can only be achieved by immediate custody, a history of poor compliance with court orders and it is unlikely that the offender will comply in the future.

In the present case the judge was alive to the possibility of suspending the sentence. He said he had to decide if the sentence had to be served immediately. He obviously had in mind the Sentencing Council Guideline as he referred to factors identified in the guideline as relevant to that decision. In particular, he said it was borderline as to whether the nature of this offence, unpleasant and intimidating as it was, was so serious that only immediate custody was appropriate. In relation to the prospects of rehabilitation, the judge based his decision on the fact that the appellant had failed to attend an appointment with probation on 1 and again on 5 September. He said that given the appellant's inability to get to probation appointments the prospect of him complying with more involved community requirements was negligible.

In our judgment this was not a case where the judge could properly reach that conclusion without a pre-sentence report assessing what if any requirements would be needed and what, if any, were the prospects of the appellant being able to comply with the requirements. Given the terms of the guideline, it seems to us that the judge should have adjourned to enable him to have that information available. It is difficult to see, and the judge did not say, that he had enough information available to enable him to sentence. Indeed the reverse seems to be the case. The nature of the offence was not such as to be determinative of the question of whether suspension was inappropriate because of its seriousness. The decision to suspend or not to suspend would turn on an assessment of what requirements the appellant would have to meet in the community if the sentence were to be suspended, and an assessment of whether there was a realistic prospect of him being able to comply with those requirements. The judge did not have information on those matters.

We recognise that obtaining a pre-sentence report and having the assessments conducted would have required an adjournment and a delay in sentencing. Delays are generally undesirable and it is important that cases are dealt with and brought to a conclusion reasonably expeditiously. We would not want to inhibit judges from dealing with sentences when they do have enough information and where delay would not be justified. Furthermore, multiple failures to attend probation appointments without good cause may well enable a court to draw the inference that an offender is unlikely to comply with a suspended sentence order, especially when it might well contain a number of requirements. But this case was not such a case. The judge did not have the relevant information. The probation officer on the day requested that the matter be adjourned because of the types of requirements for which the appellant had to be assessed.

In the particular circumstances of this case, the judge did need to obtain a pre-sentence report and assessments before deciding whether or not to suspend the sentence. In those circumstances, therefore, the judge did err by proceeding to sentence without a pre-sentence report. We do now have a report and an assessment of the suitability of the appellant for complying with mental health requirements and alcohol treatment requirements. The pre-appeal report says that the appellant presents a low risk of re-offending and a low risk of committing an offence which would cause serious harm. It notes that the appellant has demonstrated the ability to stop offending. His last conviction before this one was in 2016. The author identifies that the appellant has problems with alcohol abuse and some mental health issues including ADHD. The author says that:

The author then recommends conditions and concludes as follows:

We do now have a mental health assessment by the Devon Partnership, part of the National Health Service. That assesses that the applicant is capable of undertaking 12 sessions and recommends that he be offered suitable sessions. An alcohol assessment similarly says that the appellant is motivated to address his alcohol abuse. Mr Jode was asked and has confirmed in court today that he understands those requirements and he consents to them and is prepared to comply with them.

In the circumstances, now that the relevant information has been obtained, we consider that the relevant factors in the guideline do indicate that the custodial sentence can be suspended. We are satisfied in the light of the reports and the assessments that there is a realistic prospect of rehabilitation in the community. That points towards suspending the sentence.

We do not consider, on the information presently available, that there are present factors indicating that it may not be appropriate to suspend the sentence. The appellant does not present a risk to anyone. The offence, although serious and intimidating, is not such that appropriate punishment can only be achieved by immediate imprisonment.

We turn to the third factor. There has been a history of poor compliance with court orders but those breaches occurred some time ago, the last time in 2016 (almost 10 years ago). As the author of the pre-sentence report has said, the appellant has shown that he can stop offending. It is right to say he did not comply with two probation appointments. That is regrettable and at least one failure to do so was his own fault. As we have said, multiple failures to attend probation appointments without good cause may well enable a court to draw the inference that an offender is unlikely to comply with a suspended sentence order, especially one containing a number of requirements. But we do not consider that it would be right or just in this case to regard those two failures, one due to illness, as justifying a conclusion that the appellant is unlikely to comply in the future, particularly in light of the reports that we have now received.

We would therefore allow the appeal. We will make a suspended sentence order. The sentences of 18 months' imprisonment on count 1 and eight months' imprisonment on count 3 to run concurrently will therefore be suspended for a period of 18 months. The suspended sentence order is to include the following requirements during the supervision period: a mental health treatment requirement requiring David Ian Jode to undertake up to 12 sessions of mental health treatment to be delivered by the Devon Partnership Trust during the supervision period of the order; an alcohol treatment requirement requiring David Ian Jode to submit to alcohol dependency treatment for a period of six months to be delivered by We Are With You in Cornwall; a rehabilitation activity requirement requiring David Ian Jode to attend appointments and participate in activities as instructed by the responsible probation officer for up to 10 days during the supervision period of the sentence.

Mr Jode must understand that if he commits any further offence within the operational period of the order or if he fails to comply with any of those requirements, he will be in breach of the suspended sentence order and may be returned to prison to serve the remainder of his sentence. To that extent this appeal is allowed.