Summary of Opinion
Factual and Procedural Background
The Applicant pleaded guilty on 3 November 2023 at The Magistrates' Court and was committed to The Crown Court for sentence under section 4 of the Sentencing Act 2020 in relation to seven offences: making a threat to kill; three offences of sending a threatening message; an offence of threatening to damage or destroy property; and two offences of assault (one assault by beating and one common assault). Sentencing took place on 11 September 2024 before Judge [Last Name], who imposed an 18-month community order with five requirements (an alcohol abstinence and monitoring requirement for 100 days; a 6-month alcohol treatment requirement; a building better relationships programme; a rehabilitation activity requirement of up to 20 days; and 120 hours of unpaid work) and a 5-year restraining order.
The court received an application for an extension of time of 9 days for leave to appeal against sentence. Leave for the extension of time was granted and the substantive appeal was heard.
On the facts: the offending arose during a relationship breakdown in late October 2023 between the Applicant and the Victim. Over several days the Applicant sent messages and voice notes that were abusive, threatening and controlling, called the Victim grossly offensive names, threatened to burn restaurants owned by the Victim’s family, and physically assaulted the Victim during a car journey (grabbing the Victim's collar, throwing a phone and slamming the Victim into a car door). A Third Party answered a home phone and was subject to a threat to kill; that Third Party did not make a statement.
Pre-sentence reports and the victim personal statement were before the sentencing court. The Applicant has prior convictions (three convictions for nine offences) including damaging property, threatening words/behaviour likely to cause harassment, aggravated criminal damage and racially aggravated offences. The Applicant had also been subject to a previous community order imposed on 2 October 2023 and, subsequently, served periods of custody (including consecutive terms imposed on 1 December 2023). The Applicant argued the sentence was manifestly excessive because the sentencing judge failed to take into account time spent on remand.
Legal Issues Presented
- Whether the sentencing judge failed to account for the Applicant's time in custody/remand such that the imposed community order exposed the Applicant to further punishment in breach of the principle in Lynch [2007] EWCA Crim 2624.
- Whether, if that principle was engaged, the correct outcome was to revoke/extinguish the community order or to adjust the sentence in some other way, bearing in mind the appellate court's limitations (in particular, that this court is precluded from substituting a term of imprisonment).
- Whether an extension of time for leave to appeal should be granted in the circumstances presented.
Arguments of the Parties
Applicant's Arguments
- The Applicant submitted the total sentence was manifestly excessive or wrong in principle because the sentencing judge failed to take proper account of the Applicant's time on remand (the period of custody he had already served).
- Reliance was placed on authority (notably Lynch [2007] EWCA Crim 2624) for the proposition that it is wrong to impose a sentence exposing an appellant to further punishment when the punishment already experienced exceeded what the judge would have imposed.
- Mitigation included a submission that immediate custody could be appropriate given the time already spent in custody (an equivalent of 14 months), which the Applicant said equated to or exceeded the just and proportionate sentence for the offending.
The opinion does not contain a detailed account of the Crown's or Respondent's competing sentencing submissions.
Table of Precedents Cited
| Precedent |
Rule or Principle Cited For |
Application by the Court |
| Lynch [2007] EWCA Crim 2624 |
It is wrong to impose a sentence which exposes an appellant to the risk of further punishment when the punishment already experienced exceeded the punishment that the judge would have imposed. |
The court applied this principle to assess whether the Applicant's period of custody/remand effectively met or exceeded the punishment a sentencing judge could fairly impose; finding a real risk of further punishment existed if the community order remained unchanged, the court acted to avoid that outcome by revoking and reconstituting the sentence in the form reflected in the earlier (October) community order. |
Court's Reasoning and Analysis
The court began by granting the extension of time for leave to appeal as wholly explicable and proceeded to the substantive appeal. The court accepted the legal proposition that time spent on remand for the offence to be sentenced does not automatically count towards a community order, and that community orders contain punitive as well as rehabilitative elements that restrict liberty and can expose an offender to punishment for breaches.
The court then considered whether the period of custody already served by the Applicant effectively equated to or exceeded the period of punishment an appropriate sentence would have required. The court took into account (i) the seriousness of the offending (intimidation and controlling conduct within a domestic context), (ii) the Applicant's escalation of domestic abuse, fuelled by drink and drugs, (iii) prior convictions and previous breaches of court orders, and (iv) the applicable sentencing guidelines for multiple offences and the context of the earlier October sentence.
Applying these considerations, the court concluded that a significant period of custody would have been correct in principle but that such a period would not have exceeded the effective period of custody the Applicant had already served. Therefore, if the community order remained in place with punitive requirements, the Applicant would be exposed to the possibility of further punishment for culpable breaches.
The court regarded the correct provisional outcome as extinguishing the community order. The analysis was nuanced by the fact that, at the sentencing hearing, the sentencing judge had revoked a subsisting community order (imposed on 2 October) and, in resentencing, had appended the 120 hours from the revoked order to the newly imposed community order for the current offences. The appellate court accepted that this was a pragmatic approach by the sentencing judge but considered that simply revoking the whole prior order without replacing its punitive effect would leave the Applicant benefitting from the earlier order being quashed without having served its punishment.
To resolve this, the court allowed the appeal in part by revoking the impugned sentence and reimposing a community order that reflected the sentencing outcome of 2 October: specifically, a community order of 15 months, with up to 15 days of rehabilitation activity requirement and 120 hours of unpaid work. The court also addressed ancillary matters, including granting a representation order limited to junior counsel.
Holding and Implications
HOLDING: The court allowed the application and appeal in part. The original 18-month community order imposed on 11 September 2024 was revoked and replaced with a community order of 15 months, with up to 15 days of rehabilitation activity requirement and 120 hours of unpaid work — reflecting the sentence imposed on 2 October. The court also granted the extension of time for leave to appeal and granted a representation order limited to junior counsel.
Implications: The direct effect is that the Applicant's sentence has been amended to the 15-month community order specified above. The court relied on established authority (Lynch) regarding the risk of imposing additional punishment when an offender has already served an equivalent period in custody; the decision rectified the sentencing outcome in this case without purporting to lay down a new precedent. No substitution of immediate custody by this appellate court was made (the court noted its limitation in substituting a term of imprisonment).