The Imposition of a Suspended Sentence
The most delicate sentencing decision a Judge makes is whether to send someone to prison immediately or for them to receive a suspended sentence.
What is a Suspended Sentence?
Where an individual faces a custodial sentence, if it below a period of 2 years imprisonment, this may mean that it is a sentence which can be suspended. This means that the defendant does not go to prison straight away, but if they do not do as they are directed by probation or commit a further offence the sentence can be ‘activated’. Activation means that the Defendant will be sent to prison for the length of the sentence.
A suspended sentence is made up of two elements. The first is the ‘custodial period’ which is the actual custodial sentence. This will be linked to the offence, any credit for a guilty plea and any mitigation available to the Defendant. The second element is the ‘operational period’ which is the length of time the Defendant will be subject to supervision by probation.
How does a Judge Decide if a Sentence is Suspended?
Assuming the sentence is below two years imprisonment, this question is decided by reference to what are known as the imposition guidelines.
The first step is whether there are factors which mean the sentence should be one of immediate custody:
- Offender presents a risk/danger to the public
- Appropriate punishment can only be achieved by immediate custody
- History of poor compliance with court orders
The next step is to look at whether there are factors which mean the sentence should be suspended:
- Realistic prospect of rehabilitation
- Strong personal mitigation
- Immediate custody will result in significant harmful impact upon others
When presenting an argument in favour of a suspended sentence being imposed, it is very important to humanise an offender. This can include putting together character references from family members, employers and those in the community. It is also important to consider what the Defendant can say in respect of the offending, as a demonstration of genuine remorse and insight can be a vital factor in ensuring a suspended sentence is imposed.
A Judge is given a substantial level of discretion when deciding whether or not a sentence should be suspended, it will be very rare for the Court of Appeal to interfere with this decision.
What Requirements can be Attached to a Suspended Sentence?
Whilst a suspended sentence is considered punitive by its very nature, it will almost certainly include a punitive element over and above this. This can be achieved by the imposition of a curfew, a number of hours of unpaid work or alternatively a substantial financial penalty.
There is also a focus on rehabilitation. This can be done through Rehabilitation Activity Requirement (RAR) days, a programme requirement or through general probation supervision.
What if the Sentence is Breached?
A suspended sentence will be activated for breach unless it is unjust to do so. This is a high bar in principle but in reality if a genuine desire to comply with probation can be shown, this can often ensure a sentence is not activated.
If you are at risk of a breach, or you are facing the imposition of a custodial sentence, ensuring legal representation can make all the difference.
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