R v Mario Salvato
[2023] EWCA Crim 391
R v Stefan Barrington Braithwaite
31 July 2024
[2024] EWCA Crim 1193
Court of Appeal
A man got a suspended jail sentence for a fight. The court realised he'd already served more time than the jail sentence, so they changed it to a warning: if he gets in trouble again, he'll serve the jail time. He still has to pay £500 compensation.
Key Facts
- •Stefan Barrington Braithwaite pleaded guilty to affray (Public Order Act 1986, section 3).
- •Sentenced to 13 months' imprisonment, suspended for 18 months, with a 10-day Rehabilitation Activity Requirement and £500 compensation.
- •Application to vary sentence to account for time served under a qualifying curfew (Criminal Justice Act 2003, section 240A) was made outside the time limit.
- •The applicant had been under a qualifying curfew exceeding the 13-month sentence.
- •The judge was not informed of the time served under the qualifying curfew.
Legal Principles
A suspended sentence is inappropriate when the custodial element is less than the credit to which the applicant is entitled for time served under a qualifying curfew.
Case law decisions such as R v Williams [2018] EWCA Crim 2396, R v Dawes [2019] EWCA Crim 848, R v Blaine Latta [2023] EWCA Crim 1171, and R v Leitch [2024] EWCA Crim 563.
A court must consider time served on remand or under a qualifying curfew when sentencing.
R v Williams [2018] EWCA Crim 2396, R v Dawes [2019] EWCA Crim 848, R v Blaine Latta [2023] EWCA Crim 1171, and R v Leitch [2024] EWCA Crim 563.
Imposing a sentence on appeal that is more severe than the original sentence is prohibited under section 11(3) of the Criminal Appeal Act 1968.
R v Dawes [2019] EWCA Crim 848.
Outcomes
Appeal allowed.
The original sentence was wrong in principle because the judge was not informed of the time served under the qualifying curfew, resulting in a suspended sentence where the custodial element was less than the credit due for time served.
Suspended sentence quashed.
A suspended sentence was inappropriate given the time already served.
Conditional discharge for 12 months imposed.
This avoids imposing a harsher sentence than the original while addressing the legal errors.
Compensation order of £500 remains.
The compensation order was not affected by the appeal.