Regina v Dawes

Factual and Procedural Background

The Appellant was subject to a non-molestation order issued on 3 July 2018 and renewed on 17 July 2018, prohibiting him from approaching within 100 metres of the former partner's residence ("W"). On 9 October 2018, the Appellant breached this order by entering the property and refusing to leave despite requests, claiming he believed the order had been stopped. A further alleged breach occurred on 10 October 2018 involving abusive shouting at W.

At the first court appearance on 27 October 2018, the Appellant pleaded guilty to the 9 October breach but not guilty to the 10 October breach, electing trial in the Crown Court. He was remanded in custody from 27 October 2018 to 18 January 2019 (83 days). Subsequently, bail was granted, and the prosecution offered no evidence on the 10 October allegation, accepting the Appellant's account regarding the 9 October breach.

At sentencing on 4 February 2019, the Crown Court judge found the 9 October breach fell within Category 2B of the relevant guideline and started from a 12-week custodial sentence. Considering time served, the judge reduced this to 6 weeks and further to a 3-week custodial sentence suspended for two years, imposing additional costs and a victim surcharge.

Legal Issues Presented

1. Whether it was lawful and proper to impose a suspended custodial sentence when the Appellant had already served a longer equivalent custodial period on remand.
2. The interpretation and application of section 240ZA(7) of the Criminal Justice Act 2003 regarding credit for time spent on remand when activating a suspended sentence.
3. The appropriateness of imposing a suspended sentence in light of post-sentence supervision provisions under section 256AA and 256AB of the Criminal Justice Act 2003.
4. The compatibility of imposing a suspended sentence with the principle in section 11(3) of the Criminal Appeal Act 1968 that an appellant should not be more severely dealt with on appeal.

Arguments of the Parties

Appellant's Arguments

• A suspended sentence is intended to deter further offending by an offender who has not yet served the custodial term; it is inappropriate when that term has already been served in full on remand.
• It is improper to impose a suspended sentence with a custodial impact greater than the maximum appropriate immediate custodial sentence (citing R v Hewitt).
• Section 240ZA(7) CJA 2003 mandates that credit for time on remand is applied when a suspended sentence is activated, not at imposition, meaning the Appellant’s remand time extinguishes the custodial term.
• The sentencing judge has no discretion to reduce credit for time spent on remand (supported by Blackstone's Criminal Practice).
• It was therefore wrong in principle to impose a suspended sentence in these circumstances; the sentence should be quashed or replaced with a conditional discharge or immediate custody already served.

Crown's Arguments

• The sentence was not legally or procedurally wrong.
• R v Hewitt is no longer good law due to the introduction of post-sentence supervision orders, which extend supervision beyond custody.
• Post-sentence supervision (section 256AB CJA 2003) allows for penalties on breach, including short custodial committals not accounted for by remand credit, thus preserving the value of a suspended sentence.
• The judge sought to protect the court’s orders under section 142(1) CJA 2003 by imposing a suspended sentence to ensure compliance and deterrence.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
R v Hewitt [2011] EWCA Crim 885	Suspended sentences should not be imposed if remand time exceeds appropriate custodial term; sentencing judge must consider if suspended sentence is appropriate.	The Court referenced Hewitt to support the principle that imposing a suspended sentence after serving a longer remand is usually wrong in principle, but noted the Crown’s argument that Hewitt is outdated due to post-sentence supervision.
R v Williams	It is wrong in principle to impose a suspended sentence with a custodial term less than time already served on remand.	The Court cited this case to reinforce the point that imposing a suspended sentence under such circumstances serves no purpose.
R v Barrett [2010] EWCA Crim 2213	Limits on imposing immediate custody on appeal when the original sentence was suspended; conditional discharge not more severe than community order.	Used to support the Court’s conclusion that a conditional discharge is an appropriate and not more severe alternative to the suspended sentence in this case.
R v Thompson [2018] EWCA Crim 639	Consideration of immediate custodial sentences versus suspended sentences in light of remand credit and post-sentence supervision.	The Court relied on Thompson to justify rejecting immediate custody on appeal and opting for a conditional discharge, emphasizing careful application of s.11(3) Criminal Appeal Act 1968.
R v Walters [2008] EWCA Crim 2538	Support for the principle that immediate custody following a suspended sentence with equivalent remand time served is not more severe.	Cited to illustrate judicial reasoning on sentencing severity comparisons.
McCabe (1988) 10 Cr. App. R. (S.) 134; Peppard (1990-91) 12 Cr. App. R. (S.) 88	Principles against imposing suspended sentences that are effectively harsher than immediate custody already served.	Referenced as supporting authority for the Appellant’s submissions on sentencing principles.

Court's Reasoning and Analysis

The Court recognized the central issue that the Appellant had served a custodial period on remand approximately double the starting point for the custodial sentence the sentencing judge envisaged. The Court found no justification for imposing a suspended sentence that effectively punishes the Appellant twice: once through remand and again through suspension.

The Court noted that the sentencing judge did not adequately consider that automatic credit for remand time would apply upon activation of the suspended sentence, rendering activation impossible. The Crown's argument that post-sentence supervision preserves the value of the suspended sentence was seen as an artificial, retrospective attempt to justify the sentence, failing to address the double punishment concern and raising doubts about the efficacy of post-sentence supervision if the suspended sentence cannot be activated.

The Court also considered the Appellant’s initial proposal of substituting an immediate custodial sentence but, guided by section 11(3) of the Criminal Appeal Act 1968 and relevant case law, concluded this option risked imposing a more severe sentence on appeal and was therefore inappropriate.

Instead, the Court found that a conditional discharge was a fitting alternative. It balanced the seriousness of the offence with the disproportionate nature of a suspended sentence given the time already served on remand. The conditional discharge also fulfilled the sentencing objective of having a sanction "hang over" the Appellant without breaching statutory principles or sentencing fairness.

Holding and Implications

The Court ALLOWED THE APPEAL by quashing the suspended custodial sentence and substituting it with a conditional discharge for a period of 12 months.

This decision directly affects the Appellant by removing the suspended sentence and replacing it with a less severe conditional discharge, reflecting the time already served on remand. The Court emphasized that this does not indicate leniency regarding the breach of the non-molestation order but is a proportionate response given the circumstances. No new legal precedent was established; rather, the Court applied existing principles on remand credit, suspended sentences, and sentencing fairness.