R v Tina McDonagh

On 7 July 2025 (on the day of her trial) the appellant pleaded guilty at the Coventry Magistrates’ Court to four charges of theft. Those offences had placed the appellant in breach of a suspended sentence imposed on 1 August 2024 for a period of 9 months’ imprisonment, suspended for 18 months. The appellant was initially sentenced by the magistrates to 23 weeks’ imprisonment for the theft offences, and the magistrates purported to re-activate 21 weeks of the suspended sentence. However, they did not have the power to activate a Crown Court suspended sentence. When this error was realised the sentences were re-opened under section 142 of the Magistrates’ Court Act 1980 and the magistrates made an order remitting the theft offences and the breach of the suspended sentence order to the Crown Court.

There can be no dispute that the Magistrates’ Court had power to remit the theft offences to the Crown Court for sentence. There is uncertainty as to which commitment power they used. In the event both matters came before the Judge on 8 September 2025. He sentenced the appellant to 48 weeks’ imprisonment for the four theft offences and activated the suspended sentence order in full. The appellant now appeals against that sentence with the leave of the single judge on the basis that it is manifestly excessive. The Judge also imposed a victim surcharge, albeit there was an error in the amount of the figure which it is now clear should have been £154, and we correct that figure accordingly.

On 9 April 2025, again on two occasions on 23 April, and once again on 7 May, the appellant entered shops in Coventry in the company of a female friend and stole various items. On the first occasion £1,030 worth of goods were stolen, £855 on the second, £40 on the third and £480 on the final occasion. Previously, in May 2023, the appellant, in conjunction with others, had stolen £4,000 of items. On 6 May 2023, she was involved in two further incidents of theft from shops: £691.50 of goods were taken on the first occasion, and £1,111.30 on the second. As we have mentioned, in July 2024 a suspended sentence order was imposed for those offences. That order was some 10 months through its 18-month duration when the first of the four offences we are concerned with took place.

The Judge sentenced the appellant without a sentencing report. We are satisfied that he was entitled to do so. The appellant was aged 41 at the time of the offending with 31 convictions for 49 offences over the period 2001 to 2024, 32 of those for theft or kindred offences. The Judge was provided with evidence from some of the shops from which the thefts had taken place, referring to the endemic shoplifting which numerous retail stores are currently experiencing.

The Judge stated that he had no doubt that the appellant was stealing items to sell. We accept he was entitled to reach that conclusion; the stolen items included pet and baby food, even though the appellant had no need of either product. The Judge referred to the applicable sentencing guidelines and noted that, considered individually, one of the offences was category 1 harm, the others category 2 and that the offences fell into medium culpability on the basis there was significant planning (given the concerted and repeated pattern of offending). We are satisfied that the Judge was entitled to reach that categorisation of the offences.

That categorisation indicated a starting point of a medium-level community order for a first-time offender, with a range of up to 26 weeks’ imprisonment. There were aggravating factors in the form of the appellant’s previous convictions, the fact that the Judge was sentencing for more than one offence and that the offences were committed during the operative period of a suspended sentence. We do not accept the argument that taking that last aggravating factor into account whilst putting the suspended sentence into operation involves double counting. The suspended sentence reflected the criminality of the earlier set of offences but the fact that these fresh offences were committed during its currency is undoubtedly an aggravating factor for the later offences. The Judge also referred to the mitigating factor that the appellant was the prime carer for her two children, provided support for her father and he referred to the pressure that she was under at the time of the offences.

Given the number of offences for which the appellant had been convicted both prior to the imposition of the suspended sentence, and subsequently the Judge did not accept there had been a meaningful gap in her offending between the two sets of offences. The Judge imposed a 52-week sentence of imprisonment reduced by 4 weeks by way of credit for the late plea and activated the 9-month suspended sentence in full.

Ms Andrew appears for the appellant. We are grateful to her for her submissions which were all the more commendable for their concision. She raises two arguments. First, that the sentence of 48 weeks’ imprisonment was manifestly excessive having regard to the appellant’s mitigation, which was not limited to matters mentioned by the Judge but included her medical condition and her difficult personal circumstances which followed from the need to relocate to avoid contact with an abusive ex-partner. Second, that the Judge should not have activated the suspended sentence in full, and there was evidence that the appellant had largely complied between August 2024 and April 2025.

We are persuaded by Ms Andrew that the sentence of 48 weeks’ imprisonment, namely twice the upper limit of the relevant category, was too high, even allowing for the aggravating factors to which the Judge referred. In this context, we take into account the fact that the goods which were the subject of the second and fourth counts were recovered by the shops. In our view, having regard to all of the aggravating factors and all of the mitigation relied upon, it was appropriate to increase the starting point to the top of the range of 26 weeks. We give the same 15 per cent credit for the guilty pleas as the Judge, reducing the sentence to one of 22 weeks.

One consequence of our decision to reduce that sentence to one of below 6 months is that it is not necessary to address an issue which might otherwise have arisen as to whether the Judge had power to impose a sentence of more than 6 months for any one theft offence. That would depend on the basis on which the Magistrates’ Court had committed the case to the Crown Court.

We turn now to the decision to activate the suspended sentence. Paragraph 14 of Schedule 16 to the Sentencing Act provides that the court must activate a suspended sentence in the event of breach unless it would be unjust to do so in view of all the circumstances. The applicable sentencing guideline make it clear that the predominant factor when deciding whether it would be unjust to activate the sentence or to do so in full is the level of compliance with the order, with activation in full ordinarily being required unless it is appropriate to reduce the period of the sentence for partial compliance. Where the breaches arise from multiple new offences the guideline suggests that activation in full will ordinarily be appropriate.

In this case the suspended sentence conditions comprised a rehabilitation activity and an obligation to attend appointments or participate in directed activities up to a maximum of 25 days. It is clear from the decision in R v Idrees [2025] EWCA Crim 845 that compliance with a non-punitive requirement under a suspended sentence order, such as rehabilitation activity days, need not reduce the period of sentence when it is activated. Further, the offending spree on which the appellant embarked does not suggest that she had absorbed any of the lessons which the rehabilitation activity days were intended to impart.

The position in this case therefore is both that the suspended sentence order was breached by multiple offending and that there had been no punitive requirements of the order, compliance with which would justify a partial activation. We accept nonetheless that the Judge had a discretion to reduce the period for which the suspended sentence was activated. However that discretion was the Judge’s to exercise and we can see no error in principle in the way in which he did so. Nor are we persuaded, particularly in the light of our decision to reduce the sentence for the four theft offences to 22 weeks, that any issue of totality arises on the Judge’s sentence if the suspended sentence is activated in full. The reality is that the activation of the suspended sentence involves giving effect to a punishment imposed for a previous set of offences with the Judge’s sentence for the theft offences being a matter that it fell to him to determine afresh.

For those reasons, we allow the appeal to the extent of substituting a sentence of 22 weeks’ imprisonment which will take effect as a concurrent sentence for each of the four theft convictions in place of the 48 weeks imposed by the Judge. However, we reject the appeal so far as it concerns the Judge’s decision to activate the suspended sentence order in full.