Custodial Sentences.docx

***[Custodial Sentences -- 2 Questions]*** 'Custodial sentence' means--- a. a detention and training order under section 233, b. a sentence of detention under Chapter 2 of this Part, c. a sentence of detention in a young offender institution, d. a sentence of custody for life under section...

***[Custodial Sentences -- 2 Questions]*** 'Custodial sentence' means--- a. a detention and training order under section 233, b. a sentence of detention under Chapter 2 of this Part, c. a sentence of detention in a young offender institution, d. a sentence of custody for life under section 272 or 275, or e. a sentence of imprisonment. This is subject to subsection (3). In subsection (1**) 'sentence of imprisonment' does not include a committal for contempt of court or any kindred offence**. s\. 222(1) does not apply to 'custodial sentence' **where any of the following expressions is used in the Code: 'appropriate custodial sentence', 'current custodial sentence', 'pre-Code custodial sentence' and 'relevant custodial sentence'.** 'pre-Code custodial sentence', this means a. a detention and training order imposed under the PCC(S)A 2000, s. 100, b. a sentence of detention under the PCC(S)A 2000, s. 90 or 91, the CYPA 1933, s. 53(1) or (3), the CJA 2003, s. 226B or 228, (c) the CJA 2003, s. 226, and (d) the PCC(S)A 2000, s. 93 or 94 and the CJA 1982, s. 8. **Offenders aged under 21 at the date of conviction cannot be sentenced to imprisonment** (SA 2020, s. 227(1). Those **under 21 cannot be committed to prison for any reason, such as non-payment of a fine, but this does not prevent the committal to prison of a person aged under 21 who is remanded in custody, committed in custody for sentence, or sent in custody for trial** under the CDA 1998, s. 51 or 51A (SA 2020, s. 227(3)). ***[What are the maximum custodial sentences? ]*** Maximum prison terms for indictable offences and offences triable either way are almost always laid down by statutes creating those offences. Maximum terms are indicated in respect of each of the offences dealt with in Part B. **Where a person is convicted on indictment of an offence against any enactment punishable with imprisonment, but the sentence is not limited to a specified term or life by any enactment, the maximum prison sentence available is two years.** It seems that this provision does not apply to common-law offences, for which the penalty which may be imposed by the Crown Court is not subject to any limitation except that it must not be disproportionate to the actual offence committed. ***[What are the Limits on Imprisonment: Magistrates' Courts and the Crown Court when Limited to Magistrates' Courts' Powers?]*** The **minimum sentence which may be imposed is one of five days** (MCA 1980, s. 132) and the **maximum is six months in respect of any one summary only offence** (SA 2020, s. 224(1)) **unless a shorter maximum term is provided for a particular offence by statute**. For offences **committed on or after 2 May 2022 the maximum sentence is six months in the case of a summary offence** (unless a shorter maximum sentence is prescribed by statute) **or 12 months in the case of a single offence triable either way.** If sentencing a single either way offence committed before 2 May 2022, the maximum sentence is six months. The **maximum aggregate term which magistrates can impose is six months for summary only offences** (MCA 1980, s. 133(1)), but **if two of the terms are imposed for offences triable either way, the maximum aggregate term is 12 months**. For example, **a ten-month sentence comprising a total of nine months in respect of the summary offences plus a total of one month in respect of the two either way offences, was within the terms of the section.** **Care must be taken when sentencing in the Crown Court in the situation where either way offences have resulted in acquittal or have not been proceeded with, and the defendant falls to be sentenced only for one or more summary offences** (such as common assault or an offence of criminal damage below the £5,000 threshold). **The Crown Court is limited to a maximum of six months' imprisonment for common assault and to three months' imprisonment for the criminal damage** and, by the MCA 1980, s. 133, to a **maximum aggregate custodial sentence of six months**, less any appropriate reduction for a guilty plea. where **sentences of three months' imprisonment were imposed consecutively for four offences of common assault**, **producing a total of 12 months**, which was then suspended for 18 months. **On appeal the sentence was (with 'no enthusiasm at all') reduced on appeal to four months' imprisonment imposed concurrently on each count**, and then suspended. **D pleaded guilty to several summary only offences, commission of which had placed him in breach of a suspended sentence imposed by the Crown Court. The Divisional Court held that while the Crown Court was limited to a total of six months when** dealing with the summary offences, the judge had been entitled to activate the suspended sentence for six months consecutively, **making a total of 12 months** Court of Appeal **reduced a total sentence of 12 months for two offences of common assault and one of criminal damage to a total of five months, so that the sentence no longer infringed the MCA 1980, s. 133**, but **ordered a five-months term for breach of a Family Court non-molestation order to run consecutively to that total.** A **magistrates' court having power to imprison a person may instead order detention within the precincts of the court-house or at any police station until such hour, not later than 8 p.m. on the day on which the order is made, as the court directs** (MCA 1980, s. 135(1)). Such order **shall not operate to deprive the person of a reasonable opportunity of returning home on the same day**. The **court must not pass a custodial sentence unless it is of the opinion that**--- a. the offence, or b. the combination of the offence and one or more offences associated with it, was so serious that neither a fine alone nor a community sentence can be justified for the offence. This 'threshold test' is to reserve custodial sentences as a punishment for the most serious offences, but that there is no general definition of where the custody threshold lies. **The circumstances of the individual offence and the factors assessed by offence-specific guidelines will determine whether an offence is so serious** that neither a fine alone nor a community sentence can be justified. **The guideline also states that 'Passing the custody threshold does not mean that a custodial sentence should be deemed inevitable'** The section does not apply if the offence is one to which a mandatory sentence requirement applies. **Section 230(4) deals with the exceptional situation where a court may pass a custodial sentence on an offender who has failed to express willingness to comply with a requirement which the court proposes to include in a community order and where the requirement requires an expression of such willingness.** Requirements which require the offender's expression of willingness to comply are a mental health treatment requirement, a drug rehabilitation requirement and an alcohol treatment requirement. In forming its opinion for the purposes of s. 230(2) the court must take into account all the information that is available to it about the circumstances of the offence, or of it and the associated offence or offences, including any aggravating or mitigating factors (s. 230(6)), and the pre-sentence report requirements (see s. 30) apply to the court in relation to forming that opinion. **Two or more offences --** **Where the offender stands convicted of two or more offences the court, in deciding whether custody is justified under the SA 2020, s. 230(2), must consider the seriousness of the sum of the offences, provided that these are 'associated' with one another --** For the purposes of this Code, an offence is associated with another if--- a. **the offender---** i. is **convicted of it in the proceedings in which the offender is convicted of the other offence, or** ii. (although convicted of it in earlier proceedings) **is sentenced for it at the same time as being sentenced for that offence, or** b. **in the proceedings in which the offender is sentenced for the other offence, the offender---** i. **admits having committed it, and** ii. **asks the court to take it into consideration in sentencing for that other offence**. D was dealt with for two offences; **the second having been committed while D was on bail in respect of the first. D was sentenced for the two offences on the same occasion**; hence, they were 'associated' for the purposes of s. 400. Where a **sentencer is sentencing for a new offence and at the same time revokes a community sentence which had earlier been passed on D and resentence for that offence, or where the sentencer passes a sentence for an offence in respect of which a conditional discharge had earlier been granted, the new offence and the earlier offence are associated offences.** It was held that, **where D had been committed to the Crown Court in respect of an offence of theft which placed him in breach of a suspended sentence imposed for an earlier offence of theft, the two offences were not associated offences.** Where **D has been convicted in respect of a number of 'sample counts', any offences not included in the indictment, nor taken into consideration, are not 'associated offences'.** ***[What is the length of the sentence? ]*** S231 -- The custodial sentence must be for the shortest term (not exceeding the permitted maximum) that in **the opinion of the court is commensurate with the seriousness** of--- a. the offence, or b. the combination of the offence and one or more offences associated with it. The wording in s. 231(2) reflects the well-established principle that, when it is necessary to impose a custodial sentence, that sentence should be as short as possible to achieve the goals of that sentence. when assessing what is the shortest term commensurate with the seriousness of the offence, the court should not take into account any licence or post-sentence supervision requirements which may be imposed upon the offender's release. Section 231(3) states that **s. 231(2) does not apply if the sentence is fixed by law (murder) or carries a required life sentence (which means a sentence of detention for life under s. 250, custody for life under s. 272 or imprisonment for life)**, except as provided by the provisions relating to the sentence of life for the second listed offence. Section 231(2) applies to an extended sentence only in respect of determination of the length of the appropriate custodial term (s. 231(6)). In forming its opinion for the purposes of s. 231(2) the court must take into account all the information that is available to it about the circumstances of the offence, or of it and the associated offence or offences, including any aggravating or mitigating factors (s. 230(6)), and the pre-sentence report requirements (see s. 30) apply to the court in relation to forming that opinion. Where the offender is being sentenced for several offences, **this approach could lead to a total sentence which is disproportionate to the overall seriousness of the offending behaviour.** - **Nothing shall prevent a court 'in a case of an offender who is convicted of one or more other offences, from mitigating the offender's sentence by applying any rule of law as to the totality of sentences'.** **Where a court is dealing with an offender for several offences, one (or more) of which is (or are) so serious that only custody can be justified but the remainder of which are not so serious, the court is not precluded from passing custodial sentences for the lesser offences. However, those sentences should normally be ordered to run concurrently** with the sentences for the more serious offences and should not increase the length of the overall term. ***[Is there any relevance of prison conditions? ]*** In accordance with established principles, any court will take into account the likely impact of a custodial sentence upon an offender and, where appropriate, upon others as well. Judges and magistrates can, therefore, and in our judgment should, keep in mind that the impact of a custodial sentence is likely to be heavier during the current emergency than it would otherwise be. Those in custody are, for example, confined to their cells for much longer periods than would otherwise be the case --- currently, 23 hours a day. They are unable to receive visits. Both they and their families are likely to be anxious about the risk of the transmission of Covid-19. Applying ordinary principles, where a court is satisfied that a custodial sentence must be imposed, the likely impact of that sentence continues to be relevant to the further decisions as to its necessary length and whether it can be suspended. It is clear that the decision in Manning was not intended to provide a ground of appeal for offenders serving custodial sentences who were sentenced before the first lockdown. ***[What about time already remanded in custody? ]*** This section applies where--- a. an offender **is serving a term of imprisonment in respect of an offence**, and b. the **offender has been remanded in custody (within the meaning given by section 242) in connection with the offence or a related offence**. It is **immaterial for that purpose whether, for all or part of the period during which the offender was remanded in custody, the offender was also remanded in custody in connection with other offences** (but see subsection (5)). **The number of days for which the offender was remanded in custody in connection with the offence or a related offence is to count as time served by the offender as part of the sentence.** But this is subject to subsections (4) to (6). **If, on any day on which the offender was remanded in custody, the offender was also detained in connection with any other matter, that day is not to count as time served.** A **day counts** as time served--- a. **in relation to only one sentence**, and b. **only once in relation to that sentence**. A **day is not to count as time served as part of any automatic release period served by the offender** (see section 255B(1)). Where a court has made a declaration under **section 327 of the Sentencing Code in relation to the offender in respect of the offence, this section applies to days specified under subsection (3) of that section as if they were days for which the offender was remanded in custody in connection with the offence or a related offence.** For the purposes of this section **a suspended sentence---** a. **is to be treated as a sentence of imprisonment when it takes effect under paragraph 13(1)(a) or (b) of Schedule 16 to the Sentencing Code, and** b. **is to be treated as being imposed by the order under which it takes effect**. effect of crediting periods of remand in custody automatically, so that it is not necessary for sentencers to give any direction that time served on remand in custody should count towards sentence. The judge has no discretion on the matter. Applies to sentences of imprisonment, detention in a young offender institution, detention under s. 250 or s. 252A, custodial sentences for certain offenders of particular concern, and extended sentences of imprisonment or detention. It should be noted, however, **that s. 240ZA currently does not apply to the detention and training order, so it remains necessary when imposing a detention and training order to take into account any period spent in custody on remand.** With effect from 28 June 2022, where an offender is sentenced on or after this date, the PCSCA 2022, s. 160 and sch. 16, amended the CJA 2002, s. 240ZA, such that a period of **remand in custody will be credited automatically with respect to a detention and training order.** Also, **in respect of sentences where the law requires the setting of a specified period under s. 321 (life sentence where that sentence is not fixed by law), the court is required, when fixing the specified period, to take into account the effect which s. 240ZA would have had if a determinate sentence had instead been imposed.** In fixing the minimum term applicable in a case of murder, the court is similarly required by s. 322(2) to take into account the effect of s. 240ZA. It **is important that credit (normally full credit) for the period spent on remand is addressed when the life sentence minimum term is imposed**, because there is no administrative procedure by which the credit can later be given. in cases where the offender has spent a substantial period in custody on remand, that issue may still be relevant to the court when deciding whether further punishment is justified or whether, in effect, D has already served the sentence in custody on remand. If the appropriate sentence is one of six months' imprisonment and D has spent three months on remand, **the sentence of six months should be imposed but no further punishment (whether by way of immediate custody or a suspended sentence) is necessary**. To this extent, at least, it remains important for accurate information to be before the court as to the number of days spent on remand, so that an explanation can be given in open court as to the sentence passed and its practical effect. Offences committed on or after 1 February 2015, **where a custodial sentence of more than one day but less than two years is imposed, D will be subject to supervision and licence requirements** (see the CJA 2003, s. 256AA, and E13.27). Also, where a court imposes an immediate custodial sentence and disqualifies D from driving for the same offence, the **court is required to add an extension period to the discretionary period of disqualification.** if D had spent a significant period on remand it was open to the court to avoid injustice by reducing the discretionary period accordingly, although a precise arithmetical calculation was not required. Care should be taken not thereby to infringe any applicable minimum period of disqualification. ***[Can you credit period of bail spent subject to qualifying curfew? ]*** Where an offender has been remanded on bail and that bail was subject both to a 'qualifying curfew condition' (requiring that person to remain at one or more specified places for a total of not less than nine hours in any given day) and an 'electronic monitoring condition' (imposed under the BA 1976, s. 3(6ZAA)), the court must normally direct that the 'credit period' is to count as time served by the offender as part of the sentence. **It is the responsibility of the court to make this direction, unlike the adjustment for time spent on remand in custody, which under s. 240ZA does not require an order of the court**. Step 1 is to add a. **the day on which the offender's bail was first subject to the relevant conditions** (and for this purpose **a condition is not prevented from being a relevant condition by the fact that it does not apply for the whole of the day in question**), and b. **the number of other days on which the offender's bail was subject to these conditions** (but exclude the last of those days if the offender spends the last part of it in custody). Step 2 is to **deduct the number of days on which the offender**, whilst on bail subject to the relevant conditions, was also a. **subject to any requirement of securing the electronic monitoring of the offender's compliance with a curfew requiremen**t, or b. **on temporary release under rules made under the Prison Act 1952, s. 47.** Step 3 is to **deduct from the remainder the number of days during that remainder on which the offender has broken either or both of the conditions.** Step 4 is to **divide the result by two,** and Step 5 is, if necessary, to **round up to the nearest whole number**. **the court *must*** direct that the credit period is to count as time served **A day of the credit period counts as time served in relation to only one sentence, and only once in relation to that sentence**, and s. 240A(3B) says that **a day of the credit period is not to count as time served as part of any automatic release period served by the offender**. The sentencer should state in open court the number of days on which the offender was subject to the conditions and the number of days which the court deducted under each of Steps 2 and 3. These provisions apply **where the court passes a sentence of imprisonment, detention in a young offender institution, or a determinate sentence of detention** under the SA 2020. s. 250 or s. 252A. With effect from 28 June 2022, where an offender is sentenced on or after this date, the PCSCA 2022, s. 160 and sch. 16, **extended the law so that these provisions apply to the detention and training order.** Again, in line with the CJA 2003, s. 240ZA, a **suspended sentence counts for these purposes when it is activated in consequence of breach** (SA 2020, s. 325(6)). **where D had spent almost a year on a qualifying curfew, for which he was entitled to credit, and where the proper sentence for the offence was three months, it was held to be wrong to pass a sentence of three months suspended for 15 months with requirements**. The Court of Appeal varied the sentence to three months' immediate custody, allowing D's immediate release. ***[What are Concurrent and Consecutive Determinate Custodial Sentences?]*** Where an offender is to be sentenced for more than one offence, **the court should impose separate sentences for each offence, unless one of the offences is to be marked with 'no separate penalty'**. Sentences of imprisonment or detention in a young offender institution may run concurrently or consecutively. The **court should make it clear which sentence relates to which count and whether the sentences are concurrent or consecutive. If it fails to do so, it is presumed that the sentences are concurrent**. Where a court passes a determinate custodial sentence on a person who is already serving one or more such sentences, **it must make clear whether the fresh sentence is to be served concurrently with or consecutively to the existing sentence or sentences**. **It is unlawful to pass a sentence partly concurrent with and partly consecutive to another sentence** A sentence imposed by a court normally takes effect from the beginning of the day on which it is imposed, unless the court otherwise directs. There is no power to antedate the commencement of a sentence. It is important to note that a **court imposing a determinate custodial sentence must not** **direct that the new sentence shall commence on the expiration of any other custodial sentence from which an offender has been released on licence** (SA 2020, s. 225), whether or not that offender has been recalled from that licence. - Court of Appeal held that **it is wrong in principle in such a case to pass a sentence which is disproportionate to the most recent offence in an attempt to ensure that the offender serves more than the remainder of the licence period of the original offence**. The **guideline states that concurrent sentences will ordinarily be concurrent** where: a. offences arise out of the same incident or facts, or b. there is a series of offences of the same or similar kind, especially when committed against the same person. Where **concurrent sentences are to be passed the sentence should reflect the overall criminality involved. The sentence should be increased to reflect the presence of the associated offences**. The **guideline states that consecutive sentences will ordinarily be appropriate** where: a. offences arise out of unrelated facts or incidents. b. **offences are of the same or similar kind, but the overall criminality will not sufficiently be reflected by concurrent sentences.** c. **one or more offence(s) qualifies for a statutory minimum sentence and concurrent sentences would improperly undermine that minimum.** **The guideline states that it is not permissible to impose consecutive sentences for offences committed at the same time in order to evade the statutory maximum penalty**. Where consecutive sentences are to be passed, the judge should add up the sentences for each offence and consider if the aggregate length is just and appropriate. ***[What is Automatic Release at the Half-Way Point of the Sentence?]*** - Normally, in the case of determinate sentences of imprisonment, detention in a young offender institution, or detention under the SA 2020, s. 250, **there is a duty on the Secretary of State to release the offender on licence once the offender has served one-half of the sentence** (CJA 2003, s. 244). The licence remains in force until the expiry of the sentence (CJA 2003, s. 249). An offender who has been released on licence may have the licence revoked and be required to return to custody to continue serving the sentence. ***[What are mandatory life sentences? ]*** An **offender aged 21 and over who is convicted of murder (but not related offences such as attempted murder or conspiracy to murder) must be sentenced to imprisonment for life** (Murder (Abolition of Death Penalty) Act 1965, s. 1(1)). For **an offender aged under 21 on the date of conviction, the equivalent sentence is custody for life (SA 2020, s. 275; see E17.11)**. If, however, the **offender who is convicted of murder was aged under 18 when the offence was committed, irrespective of age on the date of conviction, the sentence is one of detention at Her Majesty's pleasure** Provide a statutory scheme for the setting of minimum terms in murder cases. These provisions apply to all cases in which a court passes a mandatory life sentence for murder -- s\. 321 **the court must normally make an order that the early release provisions of the Crime (Sentences) Act 1997, s. 28(5) to (8), are to apply to the offender as soon as the part of the sentence which is specified in the order has been served.** That part is to be **such as the court considers appropriate**, taking into account a. the **seriousness of the offence, or the combination of the offence and any one or more offences associated with it**, and b. the **effect that the following provisions would have if the court had sentenced the offender to a term of imprisonment**: i. the CJA 2003, s. 240ZA (crediting periods of remand in custody), and ii. (the CJA 2003, s. 240A (crediting periods on bail subject to qualifying curfew). If the offender **was aged 21 or over when the offence was committed, the court may, however, because of the seriousness of the offence, or the combination of the offence and one or more offences associated with it, order that the early release provisions are not to apply**. order under s. 321(3) has the effect of imposing a 'whole life' minimum term. **A judge fixing the minimum term to be served as part of the mandatory life sentence for murder is concerned with the seriousness of the offence itself, and not the dangerousness of the offender.** The element of public protection is provided by the indeterminate nature of the life sentence and becomes the responsibility of the Parole Board once the minimum term has been served. It is, however, open to a judge to express the view that D should not be released immediately upon expiry of the minimum term, or perhaps that D should not be released at all. The judge may direct that a transcript of those comments be made available to the Parole Board. In **considering the seriousness of an offence, or the combination of the offence and one or more offences associated with it, under s. 321 or 322**, the court must have regard to (a) the 'general principles' set out in sch. 21 and (b) any sentencing guidelines relating to offences in general which are relevant to the case and are not incompatible with the provisions of sch. 21. Where the **court makes a minimum term order or a whole life order the court, in compliance with the duty under s. 52(2) to state its reasons for deciding on the order made, must state in open court, in ordinary language, its reasons; in particular**, which of the starting points in sch. 21 it has chosen and its reasons for doing so and for any departure from that starting point ***[Minimum custodial sentence for Class A Drug Offence -- ]*** This section applies where--- a. a person is convicted of a class A drug trafficking offence ('the index offence') committed on or after 1 October 1997, b. when the index offence was committed, the offender--- i. was **aged 18 or over**, and ii. had **2 other relevant drug convictions**, and c. **one of the offences to which those other relevant drug convictions related was committed after the offender had been convicted of the other**. If the **index offence was committed before 28 June 2022, the court must impose an appropriate custodial sentence for a term of at least 7 years unless the court is of the opinion that there are particular circumstances which**--- a. relate to any of the offences or to the offender, and b. would make it unjust to do so in all the circumstances. (2A) If the index **offence was committed on or after 28 June 2022, the court must impose an appropriate custodial sentence for a term of at least 7 years** unless the court is of the opinion that there are **exceptional circumstances** which--- a. relate to any of the offences or to the offender, and b. justify not doing so Where the index offence occurred before 28 June 2022, the court must impose a minimum custodial sentence of at least seven years, unless the court is of the opinion that there are particular circumstances which relate to any of the offences or to the offender, and would make it unjust to do so in all the circumstances. **Where the index offence occurred on or after 28 June 2022, the more stringent test of 'exceptional circumstances'** (as to which see E18.14) contained in the SA 2020, s. 313(2A), applies. ***[What about Guilty Plea in relation to Class A drug offences? ]*** - Section 73(3) and (4) state that **in the case of an offence coming within s. 313 the court may not impose a sentence which would be less than 80 per cent of the minimum sentence specified.** **Eighty per cent of seven years produces a sentence slightly less than five years and eight months**. If the sentencer has taken a starting point which is higher than the minimum sentence**, a sentence reduction of one-third to reflect a timely guilty plea may be perfectly appropriate, always provided that the final sentence is not less than 80 per cent of the minimum sentence** where the sentencing judge is of the opinion that there are particular circumstances (now exceptional circumstance) which would make it unjust to impose the minimum sentence, **the limited reduction permissible for a guilty plea no longer applies and the judge may in an appropriate case reduce sentence to reflect a guilty plea to a sentence which is less than 80 per cent of the minimum sentence specified.** ***[MINIMUM CUSTODIAL SENTENCE FOR THIRD DOMESTIC BURGLARY]*** This section applies where--- a. a person is convicted of a domestic burglary ('the index offence') committed on or after 1 December 1999, b. when the index offence was committed--- i. **the offender was aged 18 or over, and** ii. **had 2 other relevant domestic burglary convictions**, and c. one **of the burglaries to which those other relevant domestic burglary convictions relate was committed after the person had been convicted of the other.** If the index offence was committed **before 28 June 2022, the court must impose an appropriate custodial sentence for a term of at least 3 years except where the court is of the opinion that there are particular circumstances** which--- a. relate to any of the offences or to the offender, and b. would make it unjust to do so in all the circumstances. If the index offence was committed **on or after 28 June 2022, the court must impose an appropriate custodial sentence for a term of at least 3 years unless the court is of the opinion that there are exceptional circumstances which**--- a. relate to any of the offences or to the offender, and b. justify not doing so. \(3) For the purposes of subsection (1), 'relevant domestic burglary conviction' means--- a. a conviction in England and Wales of a domestic burglary committed on or after 1 December 1999, or b. a conviction in another part of the United Kingdom of an offence committed on or after 16 August 2010 which would have constituted an offence of domestic burglary, if committed in England and Wales at the time of the conviction. Section 73(3) and (4) state that in the case of an offence coming within s. 314, the court may **not impose a sentence which would be less than 80 per cent of the minimum sentence specified** **Eighty per cent of three years produces a sentence of just less than two years and five months**. If the sentencer has taken a starting point which is higher than the minimum sentence, a sentence reduction of one-third to reflect a timely guilty plea may be perfectly appropriate, always provided that the final sentence is not less than 80 per cent of the minimum sentence. **D fell within the provisions of s. 314, but had availed himself of an early guilty plea scheme at the Crown Court. The Court of Appeal said that, in all the circumstances of the case, the proper starting point was four years and three months, from which a full one-third discount for plea could be given without infringing the rule in the SA 2020, s. 73(3).** Had a lower starting point (close to three years) been appropriate, then there would have been a clash between s. 73(3) and D's expectation of a full discount under the early guilty plea scheme. **In such circumstances, it is submitted that the statutory provision must take precedence.** ***[What is a suspended sentence? ]*** - The power to impose a suspended sentence under the SA 2020 **applies to sentences of imprisonment and to sentences of detention in a young offender institution**. The **suspended sentence is available where a court imposes a determinate custodial sentence of not more than two years**. **Sentences of less than 14 days' imprisonment cannot be suspended**. For the **sentence of detention in a young offender institution, sentences of less than 21 days cannot be suspended, 21 days being the minimum term available for that sentence** (s. 263(2)). Detention and training orders cannot be suspended. **A suspended sentence cannot be ordered unless all the statutory provisions as to the imposition of a sentence of immediate imprisonment (or detention in a young offender institution) have been observed**. Before a suspended sentence can be passed, the court must **take account of the relevant provisions of the SA 2020, ss. 230 and 231**, which must be complied with before any custodial sentence is passed. The power to impose a suspended sentence in a magistrates' court is limited in the same way in which magistrates' powers to impose prison sentences are limited. The guideline states that **'a suspended sentence must not be imposed as a more severe form of community order. Sentencers should be clear that they would impose an immediate custodial sentence if the power to suspend were not available. If not, a non-custodial sentence should be imposed.** The guideline also makes it clear that **a custodial sentence that is suspended should be for the same term that would have applied if the sentence was to be served immediately**. As far as the operational period is concerned, the guideline says that **'the time for which a sentence is suspended should reflect the length of the sentence; up to 12 months might normally be appropriate for a suspended sentence of up to six months**. ***[Consecutive sentences -- ]*** - Where **two or more sentences imposed on the same occasion are to be served consecutively, the power to suspend sentence is not exercisable in relation to any of the sentences unless the aggregate of the terms does not exceed two years**. An immediate prison sentence and a suspended sentence should not be imposed on the same occasion. - Nor should a suspended sentence be imposed on an offender currently serving a term of imprisonment. - A court which passes a suspended sentence on an offender must not on the same occasion impose a community order in respect of that offence or any other offence for which the offender is dealt with by the court (SA 2020, s. 203). - It is submitted that a suspended sentence cannot be combined with a discharge when sentencing for a single offence but a discharge could be given for one offence when a suspended sentence was passed in respect of another offence sentenced on the same occasion. - A fine may be combined with a suspended sentence, but it is improper to combine them when a fine standing alone would have been the proper sentence. Court of Appeal observed that **a fine might properly be added to a suspended sentence where a confiscation order is not contemplated, there is no obvious victim to whom compensation can be awarded, and the offender has (or will have) resources from which a fine can be paid.** It is particularly apt **when the offending is related to a defendant's business or employment, when dealing with offenders with substantial means, or when the sentence allows an offender to continue in well-remunerated work**. There is no restriction on imposing ancillary provisions such as compensation orders, restitution orders, or deprivation orders, at the same time as a suspended sentence. ***[Requirements to impose? ]*** While it is usual to include one or more community requirements when imposing a suspended sentence, **it is lawful to impose a suspended sentence without including a community requirement.** unpaid work requirement (sch. 9, part 1); rehabilitation activity requirement (sch. 9, part 2); programme requirement (sch. 9, part 3); prohibited activity requirement (sch. 9, part 4); curfew requirement (sch. 9, part 5); exclusion requirement (sch. 9, part 6); residence requirement (sch. 9, part 7); foreign travel prohibition order requirement (sch. 9, part 8); mental health treatment requirement (sch. 9, part 9); drug rehabilitation requirement (sch. 9, part 10); drug testing requirement (sch. 9, part 10A); alcohol treatment requirement (sch. 9, part 11); alcohol abstinence and monitoring requirement (sch. 9, part 12); attendance centre requirement (sch. 9, part 13); electronic compliance monitoring requirement (sch. 9, part 14); electronic whereabouts monitoring requirement (sch. 9, part 14). Where the Crown Court makes a suspended sentence order which imposes any community requirement it may direct that the order is to be subject to magistrates' court supervision (s. 297). Every suspended sentence imposes a duty upon the offender to keep in touch with the responsible officer (s. 301) and to obtain permission before changing residence (s. 302). As from a date to be appointed, the PCSCA 2022, s. 149(3), will amend the SA 2020, s. 301, to provide that the responsible officer may give instruction to attend one or more appointments for the purposes of rehabilitation of the offender or the protection of the public, and that the offender must comply. **Alcohol abstinence and monitoring requirement is not available unless regulations are in force under para. 25(7) of sch. 9**. The PCSCA 2022, s. 152(3), amended the SA 2020, s. 207(3), and **effectively abolished the attendance centre requirement with effect from 28 June 2022, unless the offender was convicted prior to this date and was under 25 when convicted.** An electronic compliance monitoring requirement is not available unless the community order imposes at least one requirement other than an alcohol abstinence and monitoring requirement or an electronic whereabouts monitoring requirement. Whenever **the court passes a suspended sentence which contains two or more different requirements, it must consider whether, in the circumstances of the case, the requirements are compatible with each other**. **Power to insert such requirements is made subject to the court ensuring, so far as possible, that they avoid any conflict with the offender's religious beliefs, or with the requirements of any other relevant order to which the offender may be subject, and avoid interference with the times, if any, at which the offender normally works or attends school or any other educational establishment**. A suspended sentence must specify the local justice area in which the offender will reside. ***[BREACH, COMMISSION OF FURTHER OFFENCE AND AMENDMENT -- ]*** Sch. 16, contains provisions relating to (**a) the breach or amendment of the community requirements of suspended sentence orders, and (b) the effect of the offender being convicted of a further offence during the operational period of the suspended sentence.** Step 1 -- if the responsible officer is of the opinion that the offender has failed without reasonable excuse to comply with any of the requirements of a community order, the officer must give a warning describing the circumstances of the failure, stating that the failure is unacceptable, and informing the offender that if within the next 12 months he or she again fails to comply with any requirement of the order, he or she will be brought back before the court. **The responsible officer need not give a warning if a previous warning was given within the preceding 12 months or if the matter is referred to an enforcement officer**. If there has been a warning, and within 12 months there is a further failure without reasonable excuse to comply, the responsible officer must refer the matter to an enforcement officer. Step 2 -- **The enforcement officer is then under a duty 'to consider the matter and, where appropriate, to cause an information to be laid'** in respect of the failure to comply. the plain purpose of the warning provisions was to provide the probation officer with a discretion which could be exercised just once. If there is a further breach within the 12-month period, the matter must come back before the court. The Court also noted that when the **information is laid there is nothing in the legislation to prevent the probation service from setting out details of the breach which prompted the warning as well as details of the second breach.** Arrangements with respect to an alleged breach, for issue of a summons or warrant by a magistrates' court or by the Crown Court. The information must be laid before the operational period of the suspended sentence has expired, although there is no requirement that the court must hear the matter before then Paras. 13 and 14, **describes the powers of a magistrates' court or the Crown Court when dealing with an offender where it is proved to the satisfaction of the magistrates' court under para. 10(1)(b) or the Crown Court under para. 12(2)(b) that the offender has breached a community requirement of the order without reasonable excuse or where the offender is convicted of an offence committed during the operational period of a suspended sentence order** (other than one which has already taken effect) and is dealt with in the magistrates' court (para. 11) or the Crown Court (para. 12). applies to all offenders aged 18 and over sentenced on or after 1 October 2018, irrespective of the date of the offence. ***[Powers of court to deal with offender on breach of requirement or subsequent conviction]*** 13.--- Where a court deals with a case under this paragraph, **the court must deal with the offender in one of the following ways---** a. the court may order that the **suspended sentence is to take effect with its original term unaltered** b. the court **may order that the suspended sentence is to take effect with the substitution for the original term of a lesser term** c. the **court may order the offender to pay a fine of an amount not exceeding £2,500** d. in the **case of a suspended sentence order that imposes one or more community requirements, the court may amend the order by doing any one or more of the following---** i. imposing **more onerous community requirements** which the court could include if the offender had just been convicted by or before it of the offence in respect of which the order was made and it were then making the order, ii. subject to section 288(4), **extending the supervision period,** or iii. subject to section 288(2), **extending the operational period;** e. in the case of **a suspended sentence order that does not impose any community requirement, the court may, subject to section 288(2), amend the order by extending the operational period**. The **criminal courts charge duty (see section 46) applies where**--- a. a magistrates' court deals with an offender under this paragraph by virtue of paragraph 10 (breach of community requirement), or b. the Crown Court deals with an offender under this paragraph by virtue of paragraph 12(2) (breach of community requirement). Where **a court deals with an offender under sub-paragraph (1) in respect of a suspended sentence, the appropriate officer of the court must notify the appropriate officer of the court which passed the sentence of the method adopted**. Exercise of power in paragraph 13: duty to make activation order where not unjust 14.--- Where the court deals with the case under paragraph 13, **it must make an order under paragraph 13(1)(a) or (b) ('an activation order') unless it is of the opinion that it would be unjust to do so in view of all the circumstances, including the matters mentioned in subparagraph (2).** Where it is of that opinion the court must state its reasons. The matters referred to in sub-paragraph (1) are--- a. **the extent to which the offender has complied with any community requirements of the suspended sentence order**, and b. in a case falling within paragraph 11 or 12(3) (conviction of further offence during operational period), **the facts of the subsequent offence**. **the court must deal with the offender in one of the ways listed in para. 13; it is not permissible simply to revoke the order, or to revoke it and resentence or to make no order with respect to it.** Paragraph 13(1)(d) is subject to any provision that applies to the court making a suspended sentence order as if the court were making that order. With regard to para. 13(2) it should be noted that the criminal courts charge was effectively abolished with effect from 24 December 2015 by reducing the sum payable to £0. **Paragraph 14(1) requires that the suspended sentence be activated in whole or in part unless it would be unjust to do so; it does not require that it be activated in whole unless it would be unjust to do so.** If the **suspended sentence is activated it may be ordered to run consecutively or concurrently to any custodial sentence imposed for the offence which has triggered the breach** (para. 15). The **usual approach is to pass a consecutive sentence, but subject to the restriction in the SA 2020, s. 225, on imposing a custodial sentence to commence on the expiration of a prison sentence from which the offender has been released on licence.** There is no power for the court dealing with a breach to impose a custodial term longer than that originally suspended. **The power of the court to impose custody when dealing with breach of a requirement attached to a suspended sentence was thereby more restricted than its power when dealing with breach of a requirement in a community order.** - where D had committed a further offence and the suspended sentence was activated in full, it was wrong to impose a longer sentence for the new offence simply by virtue of its having been committed in breach of the suspended sentence. To do so would be to punish D twice for the same matter. D had failed to comply with the supervision requirement, and had also committed a new offence during the operational period of the suspended sentence. In addition to imposing a custodial sentence for the new offence the judge activated the suspended sentence in part and then added a further three months for the failure to comply. **The Court of Appeal said the three months sentence was unlawful, the judge having, in effect, activated the suspended sentence twice.** **D was sentenced to 18 months' imprisonment suspended for 24 months**, the 18 months being composed of **consecutive terms of nine months, six months and three months**. The judge imposed **an immediate custodial sentence for a new offence committed in breach of the suspended sentence and purported to activate the three-month term within the suspended sentence while leaving the remaining 15 months hanging over D's head**. The Court of Appeal said that the approach was unlawful. **If a suspended sentence is activated in part the effect is to replace the whole of it with an immediate sentence with a reduced term.** The guideline distinguishes between the approach to be taken where breach is in the form of a. conviction for a further offence committed during the operational period of the suspended sentence and b. failure to comply with a community requirement during the supervision period. In respect of (a) the guideline states that **'the facts/nature of the new offence is the primary consideration' and sets out four categories of breach and the approach which may be taken, subject to the question whether activation of the sentence in whole or in part would be unjust in all the circumstances**. Relevant factors **include any strong personal mitigation, whether there is a realistic prospect of rehabilitation, or whether immediate custody will result in significant impact on others.** The guideline states that in considering this question **'only new and exceptional factors/circumstances not present at the time the suspended sentence order was imposed should be taken into account**'. Apart from the most serious cases, **the court should apply an appropriate reduction to the activated sentence to reflect unpaid work or curfew requirements completed.** In respect of (b) the court must take into account 'the extent to which the offender has complied' with the suspended sentence order, and sets out three categories of breach and the approach which may be taken, subject to the question whether activation of the sentence in whole or in part would be unjust in all the circumstances. The relevant factors listed above are repeated, as is the need to take into account only 'new and exceptional' matters.