Kurt Bergin [2019] EWCA Crim 1169

Regina v Kurt Bergin [2019] EWCA Crim 1169 concerned an appeal against the activation of a suspended sentence order by the Crown Court at Norwich; the Court of Appeal allowed the appeal and substantially reduced the term activated.

Mr Bergin had pleaded guilty to a drug supply offence and on 11 April 2018 was sentenced by the Crown Court at Norwich to two years’ imprisonment suspended for two years with community requirements including attendance on a Thinking Skills Programme organised by the Probation Service. On 22 January 2019 he failed to attend an appointment, and although this was not his first failure to attend, it was in respect of this breach that the Probation Service issued a summons. The breach was admitted before the Crown Court on 18 February 2019. Her Honour Judge Bacon QC adjourned the case first to 4 March and then to 25 March 2019 to see whether the defendant attended Thinking Skills Programme appointments scheduled for March.

He attended an appointment on 14 March 2019. On 18 March he attended early in the day with his children in tow, explaining that because of childcare problems he could not attend the scheduled session later that day. The session was rescheduled for 21 March, when he apparently attended, but the Probation Service treated his attendance on 18 March as non-compliant.

On 25 March 2019 His Honour Judge Holt QC, the Recorder of Norwich, dealt with the breach admitted on 18 February. Mr Morgans, counsel for the defendant, explained in detail why the appellant’s childcare arrangements had broken down on 18 March. It was at least to some extent the appellant’s fault, but he had attended the offices on 18 March, albeit with his children in tow. The Recorder, who had imposed the original sentence, activated the suspended sentence to the extent of 20 months, remarking that the sentence had not been a success and that the appellant had thrown away the opportunity given to him. The judge stated that the defendant had been given a further opportunity by Judge Bacon on 4 March, and although he had attended on one day, he did not attend the other day. The judge said that the time had run out despite Mr Morgans urging him to give yet another chance.

Mr Bergin appealed against sentence. The single judge referred to the full court the question whether leave to appeal should be granted. Mr Morgans appeared for the appellant and Miss O’Donovan appeared for the Crown.

The Court of Appeal, presided over by Lord Justice Bean, granted leave to appeal. The court held that the sentencing judge’s remarks did not grapple with the point made in mitigation that the defendant had attended on 18 March, albeit earlier in the day and with his children in tow, and had given an explanation. Miss O’Donovan accepted that it was not in dispute that this had occurred. The court held that the question was what view one took of the attendance, but it was wrong for the sentencing judge to proceed on the basis that this was a simple case of non-attendance. The court noted that the original breach in respect of which sentence was passed, namely the failure to attend on 22 January, was admitted. It was suggested that the defendant would benefit from a new suspended sentence with an operational period of at least 18 months which would enable him to make a fresh start on the Thinking Skills Programme. The court considered, with some regret, that it had no power to take that course because the operational period and the supervision period of the original suspended sentence ran out in April 2020 and the court could not impose any sentence which took the matter beyond that date.

The court quashed the order activating the original suspended sentence to the extent of 20 months and substituted an order activating it to the extent of 7 months. The effect, as the court understood the dates, was to entitle the defendant to be released on licence in something under two weeks from the date of judgment. In short, the activation was substantially reduced because the sentencing judge had wrongly proceeded on the basis that the breach on 18 March was a simple case of non-attendance.