Life in crime | The risk of double punishment

A suspended sentence is the judicial equivalent of the carrot and stick approach. But, if the offender takes the carrot, is it fair to hit him with the stick as well?

The case of R v Finn [2012] EWCA Crim 881 raises an all-too common question: to what extent, if at all, should a defendant obtain credit against the imposition of a suspended sentence because they have partially complied with the original order??Upon breach of a suspended sentence, the court must impose all or part of the original custodial term unless it would be unjust to do so. That is a two-stage test. First, is it unjust to impose the custodial term? Second, if not unjust, should the court impose the full term or only part? When making that decision, the court will look at the extent to which the conditions of the suspended sentence order have been complied with. That is relevant at both stages of the test. If the offender has completed almost all of the order, that might make it unjust to impose the custodial term. Moreover, even if the imposition of custody is not unjust, the partial completion of the conditions might mean that a lesser custodial term would be fairer.

Finn was 29 years old with 36 convictions for 86 different offences. In February 2010 he was sentenced to nine months' imprisonment, suspended for two years, for affray and possession of a bladed article. The conditions of suspension were an 18-month supervision order and 140 hours of unpaid work. In November 2011, during the currency of the suspended sentence, he committed an offence of shoplifting. In January 2012, he was sentenced to six months' imprisonment for the shoplifting and, in addition, the recorder activated the full nine months' suspended sentence, making a total sentence of 15 months.

Was any credit due?

He appealed against the activation of the full nine months of the suspended sentence, arguing that credit should have been given for the fact (a) that he had already completed the entire 140 hours of unpaid work; and (b) that he was almost at the end of the supervision period.

The recorder had refused to give any credit for those matters because, on six occasions between the imposition of the suspended sentence and the hearing, the appellant had breached the suspended sentence order in one way or another, mostly owing to the commission of fresh offences.

The Court of Appeal held: 'In the circumstances of this particular case, we do not believe that the judge erred in principle in concluding that it was not unjust to impose the suspended sentence in full. We recognise that some judges might have given the appellant modest credit for the unpaid work he had carried out, but that is not the test. A suspended sentence order must be complied with in full; non-compliance risks activation of the suspended sentence in full. In those circumstances, a defendant such as the appellant in the present case, who does not comply with the terms of the suspended sentence order, only has himself to blame if non-compliance leads to activation of the suspended sentence in full.'

The carrot and stick approach can only work if both remain available in equal measure. The Court of Appeal wanted to send out a message that offenders should not think that by taking the carrot they can diminish the power of the stick. But one cannot help but think that the recorder's decision was tinged with some (understandable) judicial frustration faced with a particularly difficult and recalcitrant offender. As always bad cases make bad law. In the end, Finn received a greater punishment than was envisaged by the original sentencing judge who determined that nine months' imprisonment was the appropriate sentence commensurate with the seriousness of the offence. Finn performed the punishment of 140 hours of unpaid work and then he was sent to prison for nine months. Perhaps, in future, when applying the two-stage test, judges should also be alive to the possibility of double punishment.