Neutral Citation Number: [2017] EWCA Crim 2259
Case No: 201702616/A3 
IN THE COURT OF APPEAL
CRIMINAL DIVISION 
Royal Courts of Justice
Strand
London, WC2A 2LL 

Date: Tuesday, 19 December 2017
 
B e f o r e:

LORD JUSTICE HOLROYDE 

MR JUSTICE GREEN 

MR JUSTICE WARBY 
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R E G I N A 
v 
MORRIS SUTHERLAND 
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Computer Aided Transcript of the Stenograph Notes of WordWave International Ltd trading as DTI, 165 Street  London EC4A 2DY, Tel No: 020 7404 1400 Fax No: 020 7831 8838 (Official Shorthand Writers to the Court)
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Mr T Sher appeared on behalf of the Appellant

Mr S Heptonstall appeared on behalf of the Crown
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J U D G M E N T (Approved)
MR JUSTICE WARBY:  This appeal against sentence raises an issue about the right approach to taking account of time spent in custody on remand when imposing a non‑custodial sentence.
The appellant is Morris Sutherland, aged 53.  In May 2017, he appeared before the Crown Court at Harrow on an indictment which originally contained two counts:  on count 1 he was charged with wounding with intent, contrary to section 18 of the Offences Against the Person Act 1861; count 2 was a charge of racially aggravated intentional harassment, contrary to section 31(1)(b) of the Crime and Disorder Act 1998.  At some later stage, the indictment was amended to include an offence under section 20 of the 1861 Act in the alternative to count 1.  
On 16th May 2017, before His Honour Judge Greenwood, the appellant changed his plea on the harassment charge to guilty.  He was then tried on the other charges and acquitted.  On 17th May 2017 he was sentenced by His Honour Judge Greenwood, who imposed a 6 month community sentence with a requirement to carry out 40 hours of unpaid work.  He was also subjected to a restraining order.  That was unopposed and is not challenged on this appeal, which is concerned only with a challenge to the community order.  Leave to pursue that challenge was granted by the single judge.
All three counts arose from events that occurred just under a year ago, on Friday 23rd December 2016.  On that day, the police received a report of an incident in which a woman covered in blood had been seen with a male heading down an alleyway.  The police located the appellant who was in the company of a woman who had cuts to her right temple.  One of these was 5 centimetres long, the other 1 centimetre by 1 centimetre.  The woman, who turned out to be the appellant's partner, was extremely drunk and unco‑operative.  She said she had fallen over and injured herself.  She kept grabbing at the appellant and saying she loved him.  Count 1 and the alternative count of section 20 arose from these facts. The prosecution alleged that the appellant had caused the woman's wounds with intent or alternatively in such a way as to give rise to a section 20 charge.
The offence that was the subject of original count 2 arose from what followed.  The woman's two sons arrived at the location.  They were angry and distressed at their mother's condition and vented their anger at the appellant.  At that point, believing the appellant had assaulted the woman, the police arrested him. He responded aggressively towards one of the arresting officers, SC Ahmed. He called him a "Paki" and referred to his "dirty Afghan bloodline". He said he would put a curse on the officer.
The appellant was refused bail and was produced at Hendon Magistrates' Court on 26th December in custody.  He was remanded in custody pending trial.
It was just under 5 months later, on the first day of his trial, that the appellant changed his plea to the harassment charge, following the production of CCTV from the scene.  He continued to deny assaulting his partner and there was a trial.  The appellant's partner gave evidence that she could not recall how her injuries had been caused.  At the close of the prosecution case the judge upheld a defence submission that the appellant had no case to answer and, on the judge's direction, he was acquitted by the jury. The judge proceeded to sentence him for the offence of harassment.
The appellant had a poor record.  He had appeared before the courts on 14 previous occasions for 22 offences between 1983 and 2010.  Most of his convictions were for driving offences though he had served short custodial sentences for some of those.  He also had convictions for criminal damage and two more of some relevance:  in 2009 he received a suspended sentence for an offence of possessing an offensive weapon in a public place; in 2010, during the operational period of that order, he was convicted of an offence of assault occasioning actual bodily harm.  He was then sentenced to 16 months' imprisonment for the assault, with 9 months of the suspended sentence activated consecutively, making a total of 25 months. 
A pre‑sentence report recorded that the appellant had apologised and had convincingly expressed remorse for making what he acknowledged were disrespectful comments  to the officer.  To the author of the report he appeared to understand the gravity of the situation and the implications of his actions.  He was assessed as posing a low risk of reconviction and a medium risk of harm to the general public.  The author of the report did not think the appellant suitable for probation intervention and it was suggested there were reasons why he would find it hard to fund travel to any community pay-back location if an unpaid work requirement was imposed.  The author proposed that the court consider a conditional discharge. If that was not considered suitable then the proposal was for a 6 month community order with between 40 and 60 hours of unpaid work.  
That is the course adopted by the sentencing judge.  The judge said he was not without sympathy to the appellant's situation at the time of the offending.  He took into account that the appellant had been acquitted of inflicting wounds.  The fact that at the time he had protested and made clear he had not done anything could not be criticised.  It was accepted he had objected to the fact that he had been handcuffed, but he had dealt with the matter wrongly.  By acting as he did towards the officers who were doing their job he made things worse. He had made it more difficult for them to remove the handcuffs. Secondly, the officer who happened to be of a different complexion to him appeared on the footage to have been gentle. The appellant had picked on him because he was of a different complexion and abused on racist lines.  That could not be condoned and could not be met with a conditional or absolute discharge.  It was too serious for that.  The judge concluded that the least sentence that could be passed was the one proposed, namely a 6 month community order with an unpaid work requirement.  The judge explained that this would, in his words, serve to emphasise how wrong it was to use racist language of that kind.  The judge made no mention of the fact that the appellant had spent 4 months and 20 days in custody on remand.
The issue raised by the grounds of appeal is whether the time spent on remand in custody makes the sentence imposed by the court manifestly excessive or wrong in principle.  Ms Sher, who appears for the appellant as she did below, does not otherwise criticise the sentence.  She accepts that the judge's decision was entirely proper if the time spent on remand is left out of account.  She points out however that a period in custody of 4 months and 20 days is equivalent to a sentence of imprisonment of over 9 months.  She argues that such a sentence would have been far beyond what the sentencing guidelines indicate for an offence of this kind. Indeed, she argues the appellant would have been better off if he had committed a more serious offence of racially aggravated harassment, with more aggravating features, which passed the custody threshold.  He would then have received a short custodial sentence of say 4 months as in the case of R v Daniels [2010] EWCA Crim 2767, to which the sentencing judge had regard.
Ms Sher goes on to say that the requirement for release after serving half a sentence would have resulted in the appellant's immediate release on the day of sentence.  As it is, his community sentence continued for a further 6 months and required him to carry out unpaid work which she characterises as punishment.
Ms Sher relied on the time spent on remand in the submissions she made to the sentencing judge, as part of a plea for leniency by way of a conditional discharge. The judge was well aware of the facts, therefore. But he evidently did not consider Ms Sher's argument persuasive.  The burden of her argument to this court is that in this respect the judge was wrong in principle.   He should have taken into account the time spent on remand, and the only course properly open to him was to impose a conditional discharge.
For the Crown, Mr Heptonstall submits that the appellant was remanded in custody in relation to all the charges he faced, including the one for which he was ultimately sentenced.  His overarching submission is that the judge was required to have regard to the time spent on remand, but that his approach was not prescribed by that consideration.  Mr Heptonstall points out that the judge was aware of the time spent on remand and did not consider it would justify reducing the sentence to conditional discharge.  That was a discretionary decision which was justified, he argues. The fact he did not articulate this reasoning is not a sound basis for overturning his decision.
This court has very recently considered and adjudicated on the issue of credit for time spent on remand in the case of R v Prenga [2017] EWCA 2149.  The facts of that case were very different from those of this one.  However, the case does serve as a salutary reminder that the way in which the court takes account of time spent on remand in custody is almost exclusively governed by statutory provisions. 
Section 240ZA of the Criminal Justice Act 2003 ensures that where an offender is serving a sentence of imprisonment in respect of an offence he will automatically receive credit for time spent on remand in custody in connection with that offence or a related offence.  A "related offence" for this purpose is "an offence, other than the offence for which the sentence is imposed ('offence A') with which the offender was charged and the charge for which was founded on the same facts or evidence as offence A".  The offender will not receive any credit if the remand relates to another, unrelated offence.  Section 240A of the 2003 Act contains provision for automatic credit where the offender has spent time on qualifying bail pending trial.  The statute also contains provisions dealing in clear terms with credit where the sentence of imprisonment is suspended.
Beyond these provisions there is a residual discretion which will only rarely fall to be exercised to adjust the sentence to ensure that it is not disproportionate. 
The statute contains no provision for any automatic credit for time spent on remand in custody when the sentence imposed is non‑custodial.  This does not mean that when imposing such a sentence the court must or is entitled to ignore time which the offender has spent on remand in custody, but in this context the approach is governed by a different statutory provision and is differently structured.  
Section 149 of the 2003 Act is headed "Passing of community sentence on offender remanded in custody".  It provides so far as relevant that:

"(1) in determining the restrictions on liberty to be imposed by a community order ... in respect of an offence, the court may have regard to any period for which the offender has been remanded in custody in connection with the offence or any other offence the charge for which was founded on the same facts or evidence."
This is a discretionary provision.  Its effect is rather broader than might at first appear but what it requires of the sentencing court is the exercise of judgment and discretion.
The right approach was considered by this court in R v Rakib [2011] EWCA Crim 870; [2012] 1 Cr App R(S) 1, where the defendant had spent 173 days in custody on remand before sentence.  At paragraph 38 the court said this:
 
"Although section 149 is in terms of 'may have regard to' such periods on remand, we have no doubt that, when considering a community order, a sentencing judge should usually have regard to such periods. In some cases, the fact that an offender has served a significant time on remand may be sufficient for a court to consider that no further punishment is required, and nothing further (in terms of a community order, for example) would be appropriate. But, even when an offender has served time on remand at least equivalent to the maximum custodial term that could properly be imposed for that offence, in our view, the 2003 Act gives the sentencer a discretion to impose a community order, even if that order includes substantial restrictions. The value of such an order, in terms of the rehabilitation of the offender and/or protection of the public, may yet make such an order an appropriate sentence. That may particularly be so where there are great potential benefits for an offender himself, and for the public, in the offender obtaining the support, training or courses that may form part of a community order." 
 
In Rakib the court held that it was not wrong in principle to impose a community order with requirements of supervision and attendance at a programme involving treatment as a sex offender.  To do so reflected the fact that under section 142(1) of the 2003 Act, which is mandatory, a sentencing judge must have regard not only to the purpose of punishment but also to the rehabilitation of offenders and the protection of the public.
In the present case, the judge sentenced on the agreed basis that the offence did not pass the custody threshold.  Any custodial sentence, however short, would therefore have been wrong in principle.  The only sentencing options were in reality, those presented in the pre‑sentence report.
We do not consider that the judge erred in opting for a community order. The harassment offence was a bad example of its kind.  The appellant's remarks were not generalised abuse of the police, they were specific racist abuse targeted at an Asian officer.  The grant of a discharge would, in our view, have been wrong in principle for offending of this gravity.  The time spent on remand in custody was, in our judgment, properly taken into account by the judge when imposing the unpaid work requirement which is a restriction on liberty.  It was the time spent on remand that led to the judge to reduce the number of hours of unpaid work from the top of the suggested range to the lowest available number.
For those reasons we dismiss the appeal.