No: 201005924/A2 
Neutral Citation Number: [2011] EWCA Crim 787
IN THE COURT OF APPEAL
CRIMINAL DIVISION 
Royal Courts of Justice
Strand
London, WC2A 2LL 
 
Tuesday, 22nd February 2011
 
B e f o r e:
SIR ANTHONY MAY 
(PRESIDENT OF THE QUEEN'S BENCH DIVISION) 

MR JUSTICE BEAN 
MR JUSTICE EDER
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R E G I N A 

v 

CALVIN MICHAEL MAUGHAN
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Mr A Walmsley (Solicitor‑Advocate) appeared on behalf of the Appellant
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J U D G M E N T
1.	SIR ANTHONY MAY:  Calvin Maughan, now aged 26 or thereabouts, had already been on remand for 198 days when he was sentenced in the Crown Court at Liverpool on 8th October 2010 by His Honour Judge Warnock to a suspended sentence comprising 6 months' imprisonment suspended for 2 years.  The offences for which that was imposed were one count of affray and one count of racially aggravated common assault.  The 198 days spent on remand would have been the equivalent of 13 months custody if he had been sentenced to immediate custody and in that event he would have had the benefit of the 198 days to set against his sentence, the effect of which would have been, if a sentence of 6 months custody immediate had been imposed, that he would have immediately been released.
2.	The facts may be briefly described as disgraceful and comprised a drunken brawl in a bar in which a number of  members of the appellant's family, including him were involved, in which a number of people were kicked, punched or otherwise assaulted and for which three of the appellant's relations were sentenced to a variety of fairly short custodial and non‑custodial sentences.
3.	The appellant pleaded guilty but he was on remand in custody before his trial, as we have indicated, for 198 days.  The judge in sentencing him and others described the affray as a disgraceful incident which had been fuelled by drink.  It had lasted a considerable time.  The violence was relatively severe and it was significantly aggravated by wholly unjustified and unjustifiable racial abuse.  Some people had suffered broken limbs and police officers had been abused.  The offences, in the judge's opinion, crossed the custody threshold.  As to the appellant's account was taken of the basis of his plea, the report which was available to the court and the principle of totality.
4.	The judge noted that he had served the equivalent of a 13 month sentence on remand.  His sentence would have been longer than 8 months because of his record and age but in the circumstances, the judge imposed a sentence of 6 months' imprisonment suspended for 2 years and he was to perform 150 hours unpaid work.
5.	There is authority to be found in the case of R v McCabe (1988) 10 Cr App R(S) 134, and R v Peppard (1990) 12 Cr App R(S) 88, which indicates to this court that it was not appropriate to impose a suspended sentence and a requirement for unpaid work, when a sentence of immediate custody would have resulted in the appellant getting the benefit of his 198 days spent on remand, which the sentence in fact passed did not give him the benefit of.  
6.	In those circumstances, we are persuaded that the sentence should not have been suspended in this way and should have been constructed in a way which would have given him the benefit of the time that he had spent on remand.  It may be that the judge would in that event have imposed a sentence of rather more than 6 months' imprisonment but in the circumstances this court finds itself, we consider that the appeal should be allowed and the suspended sentence and the 150 hours unpaid work quashed.  In its place the superficially more serious sentence of 6 months' immediate custody should be imposed.  The effect of that being that he would have been available for immediate release when the sentence was passed.
7.	In those circumstances, for those reasons and to that extent the appeal is allowed.