England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice Strand London, WC2A 2LL
		28th January 2011

1. MRS JUSTICE SHARP: This application for permission to appeal against sentence comes before the full court on the direction of the Registrar. It raises one point only, namely whether the judge was wrong to refuse to take into account the time that the applicant had spent on remand in custody when activating a suspended sentence.
2. The applicant was sentenced by Mr Recorder Atherton on 30th September 2010, at Bolton Crown Court, for one offence of assault occasioning actual bodily harm and one offence of burglary. The assault occurred when two of the applicant's companions forced entry into the home of the complainant. The applicant then punched the complainant once, as result of what he was alleged to have said about the applicant's girlfriend.
3. The burglary took place at the home of the applicant's mother. The applicant broke into her home and stole her mobile phone and £20 in cash when she was away on holiday.
4. The applicant admitted the offence when interviewed. He was then 19 years old and had a poor record.
5. When he came to be sentenced the applicant had by then been in custody on remand for 106 days. The Recorder imposed concurrent sentences of detention in a young offender institution for the two offences: 4 months for the assault and 2 months for the burglary which he suspended for 12 months with a Supervision Requirement.
6. The applicant did not comply with the Supervision Requirement. He was brought back to court on 2nd December 2010 for breach of the Requirement and appeared before His Honour Judge Everett. The judge said that if the applicant now complied with future requirements of the probation service, he would give him another chance by imposing a breach activity requirement but that if he did not, he would be sent to prison.
7. Still the applicant failed to comply. Accordingly, on 6th January 2011 the appellant appeared for a second time before His Honour Judge Everett for breach of the suspended sentence requirement.
8. Miss Mushtaq, who appeared for the applicant on that occasion and appears for him today, submitted to the judge that he should give the applicant credit for the time spent on remand in custody, having regard to the provisions of section 240(3) of the Criminal Justice Act 2003.
9. The judge did not have the benefit of a transcript of the sentencing remarks made by Recorder Atherton on 30th September 2010. Nonetheless it appears from what the judge then said that he had some information as to what had been said by Recorder Atherton. We do not know what was available to the judge, but it is clear that the judge was under the impression as a result, first, that the Recorder had explicitly said he had taken the time the applicant had spent in custody into account when he passed sentence, and second, that the Recorder would otherwise have passed a sentence on the applicant "in the region of 10 months". In the result, the judge activated the suspended sentence in full. His view was, as he said expressly, that the applicant "richly deserved the full 4 months" that were imposed by the Recorder.
10. In his sentencing remarks the judge said:

"The suspended sentence was imposed by Mr Recorder Atherton and Mr Recorder Atherton, in passing sentence, said (the comments that I have are), 'In sentencing you, I do take account of the time you have spent in custody."

11. We now have, as the judge did not, a transcript of Recorder Atherton's sentencing remarks. What the Recorder said was this:

"I have to bear in mind the public interest and the interest of trying to avoid further offending. It seemed to me that, if I were to send you back to Forest Bank, you would soon be released because of the time that you have spent in custody already and you would then be released into a situation of homelessness and hopelessness and a return to the company of people with whom you have been offending in the past, so that outlook is bleak.

The question is whether I can step back from an immediate custodial sentence and, having regard to your age and the fact that you indicated that you would plead guilty to this offence at the plea and case management hearing and that you admitted the offence at your mother's house, it seems to me that there is an alternative available to me, which is to impose a suspended sentence of imprisonment and that is what I will do. The offence itself merits six months imprisonment (that is in a young offender institution), having regard to the guilty plea that was indicated, that would probably be more appropriately a four month sentence, so that is what I am going to pass; a sentence of four months imprisonment, which will be suspended for 12 months on condition that you do not commit any further offence during that period."

12. In those circumstances Miss Mushtaq's principal submission is that the judge was wrong not to take the days spent on remand into account when activating the applicant's suspended sentence because he was wrong in his conclusion that those days had specifically been taken into account by the Recorder when he imposed the suspended sentence.
13. In our judgment, it is indeed clear from the Recorder's sentencing remarks, as is submitted, that he did not expressly take the days the applicant had spent on remand in custody into account, although the length of the sentence that was passed might have suggested otherwise. On that ground alone it follows, in our view, that the judge's refusal to take the relevant days into account when activating the applicant's suspended sentence was wrong, for the reasons explained by this court in R v Mari [2010] EWCA Crim 1143, a case in which a similar problem to the one which has arisen in this case occurred. See in particular paragraph 6 to 9 of that decision where Maddison J, giving the judgment of the court said this:

"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."

15. Accordingly, we grant permission to appeal and allow the appeal against sentence to this extent only: we exercise our discretion under section 240 of the Criminal Justice Act 2003, to credit the applicant with the time he has spent on remand in custody. We direct that the 106 days which, on the information presently before us, is the time that the applicant spent on remand in custody, shall count as time served by him as part of the sentence. In the event that the information we have been given is not accurate, then the number of days can be corrected administratively by communication with the Registrar to the Court of Appeal.