Criminal case studies continued – unrepresented defendant at sentence – CBA days of action – imprisonment

December 22, 2022

In our latest criminal case study, Zarreen Alam-Cheetham from Exchange Chambers looks at the case of Nguyen [2022] EWCA Crim 1444

The defendant received an immediate custodial sentence of 6 years when her counsel was taking part in one of the CBA days of action and was therefore not in attendance at the sentencing hearing.

On appeal, Sharp P said that the defendant found themself in a position which was no different to that where Counsel was taken ill. The sentence was quashed.

Section 226 of the Sentencing Code restricts the imposition of custodial sentences on offenders who are not legally represented. Section 226 does not apply where there is a refusal or failure to apply for legal representation by the offender, any application or representation has been refused on financial grounds, or representation was withdrawn due to conduct. For offenders under the age of 21 it is a blanket restriction on any custodial sentence. For offenders over the age of 21, the restriction applies where it is the offender’s first custodial sentence (excluding any suspended sentence which has not taken effect). In the instant case, the defendant was over the age of 21 and had no previous convictions. She had applied for, and been granted, legal representation, which had not been withdrawn. It was therefore unlawful to have sentenced the defendant. The CA could impose any sentence within the powers of the Crown Court, provided that the defendant was not dealt with more severely than by the lower court (CAA, s. 11(3)). She received a sentence of 2 years instead.