Sutherland, R. [2017] EWCA Crim 2259
[2]"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.
Cited in 1 later judgment