ACTIVATION

A sentence of two months’ imprisonment for bringing a controlled drug into a prison was appropriate despite the fact that the offender was a carer for her disabled daughter and grandchild. The judge had also been entitled to activate part of the offender’s suspended sentence for a different offence and order it to run consecutively.

[2017] EWCA Crim 1273

The court emphasised the importance of properly structuring the extension period to the length of a period of disqualification from driving as required by the Road Traffic Offenders Act 1988 s.35A and s.35B, and in accordance with the guidance in R. v Needham (Paul Maurice) [2016] EWCA Crim 455.

[2017] EWCA Crim 1243

Fresh evidence revealed that the activation of a suspended sentence for breach of probation had been premature. The offender had been in hiding for fear of reprisals and attending voluntary drug rehabilitation rather than deliberately failing to comply with the terms of the suspended sentence.

[2017] EWCA Crim 473

The public interest in extradition was outweighed by other factors in the case of a 55-year-old man who was in poor health and who was required to return to Poland to serve a custodial term for non-payment of a £600 compensation order. It was possible that the man had been unaware of the requirement to pay compensation, and it would be disproportionate to extradite him given that the sum was small, he could not have paid it at the relevant time, and was only able to pay it now because of his employment in the UK.

[2017] EWHC 168 (Admin)

A sentence of five years’ imprisonment was appropriate following a plea of guilty to arson being reckless as to whether life was endangered. After consuming excessive alcohol, the offender had deliberately set fire to the store room of a nightclub, risking the lives of 200 to 300 people and causing damage in the sum of £25,000.

[2017] EWCA Crim 147

The court reminded prosecution counsel that the duty to assist the court when sentencing extended to informing it about suspended sentences which were still in operation when the index offence was committed.

[2017] EWCA Crim 115

A sentence of 18 months’ imprisonment was appropriate for an offender with mental health problems who had pleaded guilty to arson after he set fire to two bins outside his grandmother’s house.

[2016] EWCA Crim 2037

The sentencing judge had been entitled to activate in full a two-year suspended sentence which had been imposed on an offender who had a very poor criminal record and a history of ignoring court orders.

[2016] EWCA Crim 1879

A sentencing judge had erred in deciding, in the interests of totality, to impose four consecutive sentences of imprisonment on an offender without activating a previous suspended sentence. He had been obliged to activate that sentence in full or in part unless it was unjust to do so.

[2016] EWCA Crim 1396

The Magistrates’ Courts Act 1980 s.133, which confined the magistrates’ court’s sentencing power where two or more terms of imprisonment had been imposed to a maximum of six months, did not apply to the activation of a suspended sentence. The words “impose imprisonment” in s.133, meant when the original sentence had been passed; when a suspended sentence was activated, the judge was not passing a sentence of imprisonment.

A judge had wrongly categorised a street mugging in the top category for robbery. The mugging had taken place in daylight and the majority of the victim’s lasting medical problems had been pre-existing.

Committal for sentence under the Powers of Criminal Courts (Sentencing) Act 2000 s.6 where committal under s.3 might have been expected meant that the Crown Court’s sentencing jurisdiction was limited to that of the magistrates’ court unless it could be established that there had been a mistake in recording the statutory basis for committal. In the event of a mistake, the Crown Court could rely on R. v Ayhan (Murat) [2011] EWCA Crim 3184, [2012] 1 W.L.R. 1775 to impose the sentence it thought fit.

[2016] EWCA Crim 712

An offender who had received a three-month sentence of imprisonment suspended for 24 months for supplying drugs to a prisoner and who had broken the curfew and removed the tag that had also been imposed, had her sentence activated despite her vulnerability and the absence of the pre-sentence reports at her trial. The offence was serious, she had a history of non-compliance with court orders and she had been treated leniently at her trial.

The court considered issues concerning the availability of the bar to extradition in the Extradition Act 2003 s.14 based on the passage of time in cases where the requested person had left the requesting state while subject to a suspended sentence which was subsequently activated.

[2016] EWHC 386 (Admin)

A sentence of two months’ imprisonment imposed following a guilty plea to theft was appropriate where the offender had committed a number of thefts from a clothes bank outside a hospice charity shop.

[2015] EWCA Crim 2462

A judge had been correct to conclude that a burglary fell at the top of category 1 of the sentencing guidelines where the offender had ransacked a home over several days, broken through the roof in an attempt to escape police, and thrown roof tiles at cars below. A sentence of five-years-and-four-months’ imprisonment imposed after a late guilty plea, along with the activation of a 12-month suspended sentence, ordered to run consecutively, was not manifestly excessive.

[2015] EWCA Crim 1760

A three-and-a-half-year determinate custodial sentence for an offence of wounding with intent to do grievous bodily harm which had involved the use of weapons and shod feet was unduly lenient. A sentence of five years was substituted. It was an entirely appropriate case for the activation of the offenders’ previously suspended sentences to run consecutively.

[2015] NICA 17

The substantial delay in seeking a fugitive offender’s extradition had not been oppressive due to the passage of time pursuant to the Extradition Act 2003 s.14 and his extradition had not been disproportionate under ECHR art.8.

[2014] EWHC 4275 (Admin)

A judge had erred in imposing a sentence of seven years and two months’ imprisonment on an offender following his guilty plea to an offence of conspiracy to supply cocaine. The judge had wrongly departed from the basis on which the Crown put the case and had consequently taken too high a starting point. The sentence was reduced to five years and five months’ imprisonment, although an activated suspended sentence of three months’ imprisonment, which had previously run concurrent to the original sentence, would be made consecutive, giving a total sentence of five years and eight months’ imprisonment.

[2014] EWCA Crim 1795

Sentences imposed by a Crown Court on committal pursuant to the Powers of Criminal Courts (Sentencing) Act 2000 s.6 for offences of possession of drugs, criminal damage and the activation of a suspended sentence were unlawful and manifestly excessive where they exceeded the maximum powers of the magistrates’ court and failed to give a discount for the offender’s guilty pleas.

[2014] EWCA Crim 1127

A recorder had erred when activating a suspended sentence in failing to consider the extent to which the offender had complied with the community requirements of the suspended sentence order, as required under the Criminal Justice Act 2003 Sch.12 Pt 2 para.8(4)(a).

[2013] EWCA Crim 2510

Where an offender had been sentenced to 18 months’ imprisonment for possessing an offensive weapon during the operational period of an earlier five-month suspended sentence, the sentencing judge, in deciding to activate the suspended sentence, should have given some credit for the offender’s observance of a six-month curfew requirement that had been imposed with the suspended sentence.

[2013] EWCA Crim 2594

A total sentence of two years’ imprisonment imposed following an offender’s conviction for dangerous driving and driving while disqualified was not manifestly excessive. However, the recorder had erred in imposing a requirement to pass an extended driving test, as the offender was already subject to such a requirement, and in taking no action regarding his breach of a suspended sentence, as that was not an option under the Criminal Justice Act 2003 Sch.12 Pt 2 para.8.

[2013] EWCA Crim 2517

Where an offender subject to a suspended sentence for drug offences re-offended within the operational period and was convicted of grievous bodily harm, the fact that the new offence was of a different category from the previous offence was no good ground for objecting to activation of the suspended sentence. The fact that he had complied with supervision requirements attached to the suspended sentence was not sufficient to justify activating only part of it.

[2013] EWCA Crim 2585

A total sentence of 32 months’ imprisonment for drug offences plus an 18-week activated suspended sentence was reduced to two years and two months’ imprisonment. Where a judge activated a suspended sentence in full, he could not take it into account as an aggravating factor when sentencing for offences committed during the operational period of the suspended sentence.

A starting point of over 12 months’ imprisonment for affray was appropriate where, even though the judge had not been aware of the defendant’s basis of plea which maintained self-defence, the serious consequences to the victim could not wholly be set aside. It was important that a defendant had his basis of plea in writing so that the Crown and the judge were aware of what he was prepared to admit.

When activating a suspended sentence in its entirety, a judge had erred by not counting towards sentence time spent on remand in custody as required under the Criminal Justice Act 2003 s.240ZA(7).

[2013] EWCA Crim 1132

A judge had been entitled to activate a suspended sentence in full where the offender had committed an offence of vehicle theft within five weeks of the order having been imposed, notwithstanding he had completed a requirement of the order that he attend a thinking skills programme by the time he was sentenced for the theft.

[2013] EWCA Crim 1070

A total sentence of 18 months’ imprisonment was manifestly excessive where an offender had attended his mother’s house in breach of a restraining order, thereby breaching a suspended prison sentence. The breach of the restraining order fell into the lowest category in the sentencing guidelines, but a custodial sentence was inevitable in view of a history of offences against family members. A total sentence of nine months’ imprisonment was appropriate.

[2013] EWCA Crim 881

Where an offender committed fresh offences whilst subject to a suspended sentence, a judge had erred in activating the suspended sentence in full because the offender had complied with the supervision requirements, and some allowance should have been made.

[2013] EWCA Crim 576

The Extradition Act 2003 s.2(6)(b) and s.2(6)(e) did not require a European Arrest Warrant to include details of an offence which resulted in the activation of a suspended sentence of imprisonment for which a person’s extradition was being sought.

[2013] EWHC 433 (Admin)

Where a long-term drug user had pleaded guilty to an offence of possession of a Class A drug, the court was entitled, under the Criminal Justice Act 2003 Sch.12 Pt 2 para.8(4), to conclude that it would be unjust to impose a custodial term and to activate two suspended sentences imposed for similar offences where the offender had made real progress in relation to his drugs dependence and abstinence might realistically be achieved through a drug rehabilitation requirement. The case was exceptional and was not to be taken as having a wider significance.

[2013] EWCA Crim 1563

It had been manifestly excessive to activate a full suspended sentence of 12 months’ imprisonment, imposed for an offence of grievous bodily harm, where the offender had completed a requirement for unpaid work.

[2013] EWCA Crim 339

A magistrates’ court appeared to have made a decision to activate a suspended committal order following non-payment of a compensation order without considering the possibility of appointing a supervisor for the offender under the Magistrates’ Courts Act 1980 s.88. The court had been required to consider that possibility under s.82(4A)(c). The committal order was quashed and replaced with an order appointing a supervisor.

[2013] EWHC 4760 (Admin)

An offender who had breached a conditional discharge order but spent a significant period of time under a curfew and electronic tag, could receive a deduction from his sentence in the same way as an offender who had been on bail.

[2012] EWCA Crim 2653

An appellant’s extradition to Poland to serve the balance of a prison sentence did not constitute a disproportionate interference with the rights of his child under the European Convention on Human Rights 1950 art.8. The United Kingdom should not become a safe haven for criminals wanted in European Union states merely because they had a child upon whom there would be hardship.

[2012] EWHC 3180 (Admin)

Following committal for sentencing, a Crown Court had acted beyond its powers when sentencing an offender to nine months’ imprisonment for an offence of theft. The case should have been committed to the Crown Court for sentencing under the Powers of Criminal Courts (Sentencing) Act 2000 s.6 rather than under the Criminal Justice Act 2003 Sch.12 Pt 2 para.8(6) with the result that its sentencing powers were limited to those of magistrates.

[2012] EWCA Crim 1939

A total sentence of 19 months’ imprisonment was imposed following a plea of guilty to aggravated vehicle-taking and activation of a suspended sentence. That took account of the defendant being subject to an electronically monitored curfew of eight hours a day for 10 months before trial and also the fact that only four months remained of the operational period of the suspended sentence when he committed the subsequent offence.

[2012] EWCA Crim 2230

When activating a suspended sentence it was not always appropriate to reduce the term of the suspended sentence even where an offender had completed all or part of the community requirements attached. A judge had been entitled to activate a suspended sentence in full where the offender had not demonstrated any significant change in his behaviour, despite attending a drug and alcohol treatment programme.

[2012] EWCA Crim 2036

The activation period of a suspended sentence should be reduced to take into account the appellant’s successful completion of the greater part of a nine-month rehabilitation order.

[2012] EWCA Crim 1501

A judge had not erred by imposing concurrent sentences of three-years-and-four-months’ imprisonment on an offender after his guilty pleas to burglary and attempted burglary, and a consecutive sentence of eight months’ imprisonment for breach of a suspended sentence.

[2012] EWCA Crim 1436

Concurrent sentences of eight months’ imprisonment imposed on an offender following his guilty pleas to four counts of credit card fraud were reduced to concurrent five-month terms. The offences fell within the second category in the guidelines for offences of banking fraud, and while a number of aggravating factors had entitled the judge to go outside the guidelines, he had not accounted for the low value of the fraud.

[2012] EWCA Crim 1776

The activation period of a suspended sentence would be reduced from 12 to three months where, among other things, the appellant had completed the unpaid-work requirement of the sentence.

[2012] EWCA Crim 1960

A total sentence of 128 weeks’ imprisonment imposed following guilty pleas to non-domestic burglary, criminal damage, driving whilst disqualified and an admitted breach of a suspended sentence order was quashed and replaced with 20 months’ imprisonment where the sentence imposed for the low-value burglary was manifestly excessive, and the judge had erred in activating the whole term of the suspended prison sentence given the offender’s compliance with the community requirements of the suspended sentence order.

[2012] EWCA Crim 822

It had not been unjust for a judge to activate a suspended term of imprisonment in full despite the fact that the offender had completed an unpaid work requirement imposed as part of the suspended sentence order, given the offender’s continued criminal activity and failure to engage with the principal purpose of the order.

[2012] EWCA Crim 881

A judge had been entitled to activate in full a suspended sentence of imprisonment imposed for drug offences, despite the fact that the offender had complied with some of the sentence requirements, including a curfew requirement, as the offender had also carried on with significant drug-related offending almost immediately after its imposition.

[2012] EWCA Crim 290

The fact that an offender had committed an offence during the operational period of a suspended sentence was not an aggravating factor justifying an increase in sentence length where the suspended sentence was activated, as the activation of the suspended sentence was sufficient punishment.

[2011] EWCA Crim 2754

An offence of aggravated vehicle-taking had been unlawfully committed for sentence under the Powers of Criminal Courts (Sentencing) Act 2000 s.3 as there had been no determination that the value of the damage caused was at least £5,000, such as to make the offence triable either way. The sentence imposed of 16 months’ imprisonment was quashed and replaced by one of four months.

[2011] EWCA Crim 3256

Where a conviction European arrest warrant related to a combined sentence imposed in respect of an index offence and of a previous offence, the sentence for which was activated by the index offence, particularisation of both offences would ordinarily be required to ensure compliance with the Extradition Act 2003 s.2(6)(b).

[2011] EWHC 864 (Admin)

A judge activating a suspended sentence of imprisonment had erred in failing to give a direction under the Criminal Justice Act 2003 s.240 giving the offender credit for time spent detained on remand before the original imposition of the suspended sentence.

[2011] EWCA Crim 885