The court considered an appeal against sentence where the judge, in activating a suspended sentence had not allowed for time spent in custody on remand. Maddison J said: ‘The Registrar referred this case to the full court so that it could consider the lawfulness of the judge’s approach. This case illustrates the sorts of problems that can arise when the activities of a persistent offender bring into play the somewhat complex provisions of the Criminal Justice Act 2003. We are sure that the judge’s approach was in fact unlawful. Sections 240(1),(3) and (4) insofar as they are material provide that when a court imposes a sentence of imprisonment for an offence in connection with which the offender has been remanded in custody, it must direct that the number of days for which the offender has been thus remanded are to count as time served by him as part of the sentence unless it considers that it would not be just to give such a direction.
Section 240(7) provides in effect that for the purposes of section 240 a suspended sentence is to be treated as a sentence of imprisonment not when it is first imposed but if and when it is ordered to take effect, pursuant to paragraph 8 of schedule 12 to the Act of 2003, which governs the court’s powers to activate a suspended sentence in whole or in part should the offender have broken any of the community requirements associated with the suspended sentence, or should he have committed a further offence during its operational period. Thus, in this case the judge was obliged to direct that the periods of 35 and 30 days, to which we have referred, should count towards the sentence unless he thought that it would be unjust to do so.
With respect to the judge, his assumption that the two judges who passed the suspended sentences would have adopted the approach to which he referred could not possibly found a legitimate conclusion that it would not be just to direct that the periods of 35 and 30 days should count towards the sentences he activated. In fact, there is nothing to suggest that either of the judges who passed the suspended sentences originally did in fact adopt the approach that His Honour Judge Hopkins QC assumed that they did.
If further support beyond the terms of the Act itself were required that the judge’s approach was unlawful, it is to be found in the case of Fairbrother to which we have already referred, and in which this court in a constitution presided over by the then Vice Precedent, Latham LJ accepted without question that the sentencing judge had been in error in failing when activating a suspended sentence to direct that the 158 days that the appellant had spent in custody prior to the passing of that suspended sentence should count towards the effective sentence now being imposed, and proceeded to correct the error.’
Judges:
Maddison J
Citations:
[2010] EWCA Crim 1143
Statutes:
Jurisdiction:
England and Wales
Cited by:
Applied – Regina v Greer CACD 28-Jan-2011
The defendant appealed against an order disallowing any time already spent in custody when activating a suspended sentence.
Held: The appeal succeeded. . .
Lists of cited by and citing cases may be incomplete.
Criminal Sentencing
Updated: 13 July 2022; Ref: scu.449729