Immediate Custody Without a Pre-Sentence Report

For those offences where custody is a sentencing option, the court should only impose a custodial sentence where the offence (or combination of offences) is so serious that neither a fine alone nor a community sentence can be justified.

Offences before the Magistrates' Court that fall into this category are few and far between, with fewer than 5 percent of all cases resulting in an immediate custodial sentence. I am sure colleagues would agree that custody decisions are a rather sobering experience. They always, quite rightly, require the highest level of scrutiny. They are only used when all other options have been explored and rejected. The power to deprive a fellow citizen of their liberty - possibly their family and livelihood too - must be used with the utmost care, consideration and responsibility. It is something we take very seriously indeed, despite regular mud slinging in our direction.

It should also be said that just because custody seems a possibility for a particular offence, that does not make it an inevitability. Some offences that would ordinarily attract a custodial sentence may well attract a lesser penalty due their unique circumstances. The court may well take the view that a lengthy community order with onerous requirements is preferable to a shorter suspended sentence order with fewer requirements.

We have previously discussed the role of the National Probation Service in preparing reports to assist the court with its sentencing decisions. Whenever a custodial sentence is being considered, the court should request a pre-sentence report unless it considers it unnecessary, in all the circumstances, to do so. It would be unusual for the court to impose a custodial sentence without a report, but it does occasionally happen. A few weeks ago I was part of a bench that took just that decision.

The defendant in that case appeared in custody, having been arrested the previous day for breaching a restraining order. The order had been imposed to protect a former girlfriend of his, who he had been convicted of stalking. The man had a history of turning sour against women who had rejected him, having previous convictions for harassment and malicious communications offences.

It was a flagrant breach, him having turned up at the complainant's address, hammered on the door and shouted his undying love for her through the letterbox. It was his first breach and the order was only a month old.

Based on what we had heard, custody was definitely on the cards. We returned to the courtroom and the Presiding Justice announced that we would be asking for a pre-sentence report. An NPS staff member was called into the court and we delivered the message that we would like them to prepare a report in the custody band, although made it clear to the defendant that if a different bench were to sentence the matter they could still do that in their own way. The probation officer asked for some time to make enquiries about where and when the report could be completed, so we sent the defendant back down the cells while these enquiries were made.

An hour or so later the probation officer returned and told the court that having made enquiries the National Probation Service was of the view that it could give no further input into how the defendant was sentenced, as he had been through the system for similar offences several times already.

With that our options were narrowed to only one - immediate custody. We then consulted the relevant guidelines to determine the shortest sentence that was commensurate with the seriousness of the offence. As alluded to earlier, we considered it quite a serious breach with several aggravating factors and little in the way of mitigation in the defendant's favour. The court always takes a very dim view of those offenders who cock a snook at its orders.

We decided on 36 weeks' custody, reduced to 24 weeks' for the defendant's guilty plea. We also imposed the statutory surcharge and ordered him to pay a contribution towards prosecution costs. Additionally, on the application of the prosecution, we varied the conditions of the restraining order to make it run until a further order of the court (indefinitely).

District Judge Jack McGarva, sitting at Chester Magistrates' Court, has just dealt with a similar case.

John Moore, 60, of Brook Street, Chester, admitted breaching a criminal behaviour order prohibiting him from entering the city centre.

He was sentenced to 4 weeks' immediate custody without the preparation of a report.