|Posted: 06 December 2012 at 11:10 | IP Logged
It is right that although an indication of a community penalty may be given, the court cannot tie the hands of the next Bench and will keep all it's options open for the next hearing. However it is right to say that if the Court is adjourning to consider a community penalty as an alternative to Custody, the sentencing court should not then subsequently pass a custodial sentence if the pre-sentence report suggests that a community penalty would be suitable. R v Gillam.
One of the reasons that the court keeps all it's options open is incase there is something vastly different between the conviction and sentence. Was there something different? Was the report positive? Did the client say something in his report to suggest otherwise? No remorse, blaming someone else. What were the reasons that the Court gave for going behind the first courts indication??
I think you need to address the above before you consider what to do.
I agree with JonLewis - list before the Crown Court. Realistically is the Judge really going to interfere with what the first bench said? I think not provided there is no change as I have suggested above. Worst case scenario - he gets the suspended sentence.
Knowledge is to know that a tomato is a fruit. Wisdom is to know that you do not put a tomato in a fruit salad!