Committing Offence on Suspended Sentence: Legal Guidance

What is a Suspended Sentence?

A suspended sentence is when an individual is given a custodial sentence, but does not go to prison straight away. Instead, the offender is given a chance to demonstrate good character and rehabilitation by complying with a Suspended Sentence Order. This means that the individual instead serves their sentence in the community rather than in prison and is usually asked to comply with a number of conditions or requirements. These conditions and requirements could include things like being subject to a curfew, completing unpaid work, attending rehabilitation sessions with a Probation Officer or attending a groupwork programme.

Suspended sentences are available where a sentence of two years’ imprisonment or less is deemed appropriate for the offence. It is also more likely to be used when a defendant is considered compliant, perhaps were admissions have been made and guilty pleas entered.  The court will also consider whether there is a realistic prospect of rehabilitation.

If granted a suspended sentence, the defendant is given what is called a Suspended Sentence Order. The Order will state the length of the custodial term, the period that the sentence is suspended for and it will list any requirements.

If an individual fails to comply with one of the requirements of the Suspended Sentence Order, then the individual would be in breach of the order. This is a criminal offence in its own right and is likely to trigger the original custodial sentence.

When is Someone Likely to Receive a Suspended Sentence

A court can suspend a custodial sentence if the court decides that the appropriate sentence is between 14 days and two years in length. The Sentencing Guidelines outline the numerous factors that are likely to indicate that a suspended sentence may be more appropriate than a custodial one. These factors can include the following:

• Where there is a realistic prospect of rehabilitation
• Cases where there is strong personal mitigation
• Where immediate custody would result in a significant harmful impact upon others

Furthermore, the Sentencing Guidelines outline factors in a case where a suspended sentence would not be appropriate. These include:

• Where the offender presents a risk/danger to the public
• Where appropriate punishment can only be achieved by immediate custody
• Where the offender has a poor history of poor compliance with court orders

Committing a Separate Offence whilst on a Suspended Sentence

As well as a breach of a suspended sentence through non-compliance with the terms of the Suspended Sentence Order, committing a separate offence during the period of the Order is also likely to carry its own consequences.

In most circumstances where an individual is convicted of a further offence during the operation period of the original Suspended Sentence Order, the starting point for the court will be to activate the custodial term.  In fact, the Court must do this unless it would be unjust in all circumstances to do so.

Unjust in all Circumstances

When determining whether or not it would be ‘unjust in all circumstances’ for the original custodial sentence to be activated, the predominant factor to be considered by the Court relates to the level of compliance the defendant has shown with the requirements of the Suspended Sentence Order along with the facts and nature of the new offence. The Court dealing with the new offence will also need to consider why the Court imposing the original Order deemed it more suitable than a custodial one in the original case.

When considering whether the activation of the sentence is likely to be unjust, the Court is likely to consider similar factors to the original court, such as any personal mitigation, realistic prospects for rehabilitation and whether or not immediate custody is likely to result in a significant impact on others. However, these factors must be new and exceptional factors or circumstances that were not present at the time of the original sentencing.

It is up to the Court dealing with the new offence to decide whether or not the original custodial sentence should be activated.

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Activation of the Custodial Sentence

In many circumstances, the court will find that they have no other option but to activate the original custodial sentence, whether this be in full or in part.  Again, the court’s decision in relation to this will rely on factors relating to the new offence, how it relates to the original offence and the level of compliance with the current requirements of the SSO.

For instance, in cases where multiple or more serious offences have been committed, where the new offence is similar in type and gravity to the offence for which the suspended sentence order was imposed and/or in cases where there has been very little compliance with the requirements of the Order, it is likely that the full custodial sentence will be imposed.

In circumstances where there is evidence of compliance with the terms of the order, it may be that the sentence is activated but an appropriate reduction applied in order to take into account any unpaid work undertaken or curfew completed.

Other Outcomes

Where the new offence committed does not carry a custodial sentence, the court may consider not activating the suspended sentence for the original offence.

This alternative outcome might include the following:

• Extension of the original order – the court could decide to extend the operational period of the current suspended sentence that is already in place
• Impose different or more onerous requirements – the court may decide to add different requirements to the Order, which are likely to be more onerous
• Extend the supervision period – if the original Order includes a supervision period with the Probation Service, then it may be that the Court decides to extend this period
• Fine – in some cases, it may be possible that the Court simply imposes a fine

In instances where the suspended sentence order has only been in place for a short period of time and there has been no chance for the defendant to comply with the rehabilitative requirements through no fault of their own, it may be possible to request a deferral of sentence to allow the individual to demonstrate compliance with the order before being sentenced for the new offence. However, this is only likely to be accepted in very exceptional circumstances.

If the offence that you are convicted of is alleged to have occurred prior to the imposition of the Suspended Sentence then there will be no impact on the current suspended sentence order.

Sentencing the New Offence

If the new offence also incurs a custodial sentence, the sentence is likely to be added on top of the activation of the suspended custodial order and thus ordered to run consecutively.

Aggravating Factor

It also is possible that the fact that the new offence was committed during the operational period of a suspended sentence will act as an aggravating factor when sentencing this new offence. This means that it is possible that this will lead to an increased starting point for sentencing of the new offence.

A conviction of a new offence during the period of a Suspended Sentence Order poses a serious problem and generally carries a high risk of an immediate custodial sentence being imposed.  However, with experienced legal representation, a package of mitigation may be advanced which can lead to an alternative to prison.  It is therefore crucial that you get in touch with expert criminal defence solicitors as a matter of urgency. For expert legal advice and representation, contact us for a no obligation conversation 0207 8464999 or at [email protected].