Neutral Citation Number: [2010] EWCA Crim 1075
Case No. 2010/01752/A8
IN THE COURT OF APPEAL
CRIMINAL  DIVISION

Royal Courts of Justice
The Strand
London
WC2A 2LL

Date: Friday  30  April  2010

B e f o r e:

MR  JUSTICE  DAVID  CLARKE

and

MR  JUSTICE  LLOYD  JONES
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R E G I N A

- v -

MARK  BELL
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Miss K Mahmutaj appeared on behalf of the Applicant

Mr R Bryan appeared on behalf of the Crown
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J U D G M E N T

MR JUSTICE DAVID CLARKE:  
1.  This is an application for leave to appeal against sentence which has been referred to the full court by the single judge.  It creates an unusual and difficult problem.  We grant leave.

2.  The appellant, who is now aged 24, was sentenced to four months' imprisonment, having breached a previous community order.  He was therefore re-sentenced for the offence for which the community order had been imposed.  It was an offence of harassment contrary to section 2 of the Protection from Harassment Act 1997.  He had originally faced an indictment alleging a more serious form of harassment (putting in fear of violence, contrary to section 4 of that Act).  He had been remanded in custody for five months before his appearance in the Crown Court.  

3.  Having pleaded guilty to the lesser offence on 6 May 2009 in the Crown Court at Chelmsford, a pre-sentence report was prepared.  On 15 June 2009 he was sentenced by His Honour Judge Ball QC to a community order with two years' supervision and a Domestic Abuse Specified Activity Requirement.  That is the order of which he was in breach and which led to the sentence on 16 March 2009 with which we are concerned.

4.  The offence of harassment arose from the appellant's relationship with Christine Keen, which had ended.  On 23 November 2008 he went to her home address and asked her to go to his home to speak to him.  Reluctantly, she did so.  He refused to let her leave.  He became angry.  He kicked over items.  The argument her pregnancy.  He was very possessive.  

5.  On the following day a further similar incident occurred at a hotel to which the appellant had taken the complainant.  There was a repetition of the argument in the street and eventually the complainant called the police.

6.  The appellant had many previous court appearances, including theft, burglary, attempted theft, handling stolen goods and other offences of dishonesty, but also assault with intent to resist arrest, making threats to kill, motoring offences, breach of a community order, breach of a non-molestation order and the like -- a very bad record for offences of this sort.  It is little surprise that the appellant was remanded in custody pending his trial for an offence contrary to section 4 of the Act.

7.  The pre-sentence report available to the judge in June 2009 was profoundly unhelpful to the appellant, who minimised and justified his behaviour, had little victim empathy, and blamed the complainant for his behaviour.  There was a pattern of angry, controlling and aggressive behaviour.  Some of his previous convictions related to his conduct towards a former partner.  His record of compliance with court orders was poor, his motivation was low, and he posed a high risk of harm to the complainant.  

8.  All those matters were given entirely understandable weight by the judge who was concerned clearly by the order he made to take steps to protect this complainant (and indeed any future women with whom the appellant might enter into a relationship) from violence at his hands.  When he passed sentence the judge shortly addressed the appellant as follows:

".... I am going to make the community order that is suggested in the pre-sentence report.  ....

It is a big problem.  If you do not do something about it you are going to keep coming back here.  If you do keep coming back here what option have we got but to lock you up?  We have to do that to stop you beating people up and we do not want that.  ....

.... if you breach the order you will be brought back in front of me, because I keep an eye on all of these orders.  If you breach it and you come back in front of me and you have not made significant progress on it then you will go inside because we have to punish you some way and if you choose not to opt for this then that is the only other alternative.  You are obviously intelligent enough to understand it.  Go away and make use of it and let us not see you again. ...."

That is the end of the sentencing remarks.  There is no reference in them, nor indeed in the transcript of the proceedings on that day, to the time spent by the appellant in custody on remand, apart from the fact that Crown counsel drew the judge's attention in opening to the maximum sentence for the offence and to the fact that the appellant had been in custody.  Thus there is nothing in those remarks to indicate what, if any, weight was given to the period of five months spent in custody.  We have to look to later events to see how the judge regarded that factor.

9.  Once the Crown accepted the appellant's plea to an offence carrying a maximum of six months' imprisonment, it might -- and we suggest should -- have been argued before the judge that the imposition of the community order carrying with it the risk of subsequent re-sentencing for the original offence was itself wrong on the basis of this court's decision in R v Hemmings [2007] EWCA Crim 2413.  Be that as it may, the community order became a valid order of the court and the subsequent breach proceedings were likewise valid proceedings.  

10.  Subsequently, on 25 June and 25 November 2009, two further community orders were imposed by the magistrates' court, one for common assault and one for a cannabis offence.  The appellant's compliance with the community orders continued to be very poor.  His attendance was sporadic.  At one stage he refused to put on the high-visibility jacket which he was required to wear.  He repeatedly failed to attend sessions, despite due warnings.  At the time of the breach proceedings he had completed only eight-and-a-half hours of the unpaid work and he had already been dealt with for one breach when the magistrates added ten hours to the unpaid work requirement.  

11.  Despite this history of non-compliance, the author of the pre-sentence report expressed the view that, despite his fluctuating motivation with the order, the appellant should remain under Probation Service supervision; that the three current orders should be revoked; and that a fresh, substantially more onerous community order should be imposed in their place.  

12.  This proposal did not appeal to the judge.  We can see why.  On 15 June 2009 he had given the appellant a clear warning of what would occur in the event of a breach.  It is no surprise that on 16 March 2010 the judge decided that enough was enough.  He did not waste words on the appellant.  In his sentencing remarks he said:

".... You have been coming to court long enough and often enough to know how it works; we give you a number of chances and if you do not take the chances we are forced to do something about it.  You have not taken this chance, you messed the system about, you have engaged when you felt like it and not turned up when you felt like it.  The courts are not prepared to put up with this any more.  You are in breach and you are going to be dealt with for the breach and I promised you when I saw you last June, you remember, I told you if you breached it, it was reserved to myself, if I saw you on a breach I would send you inside.  You are here, you have breached it, I am keeping my promise because you broke your side of it.

The sentence that I pass is one of four months' imprisonment.  As you know, you will serve half of that.  There is no double credit for the time in custody previously, I spelt that out to you before, so you have two months to serve.  Down you go.  The other orders are revoked."

13.  Miss Mahmutaj, in careful written submissions, takes the point that it was impermissible for the judge to say, as in effect he did, that he would make no allowance for the time which the appellant had spent in custody on remand before the imposition of the community order in June 2009.  That was a period of over five months when, as we have indicated, the appellant was awaiting trial for the more serious form of offence under the Act.  Miss Mahmutaj relies upon the provisions of section 240 of the Criminal Justice Act 2003, and in particular the decision of this court in R v Stickley [2008] 2 Cr App R(S) 33.  

14.  Section 240 provides, so far as relevant, as follows:

"(1)  This section applies where --

(a)a court sentences an offender to imprisonment for a term in respect of an offence committed after the commencement of this section, and

(b)the offender has been remanded in custody .... in connection with the offence or a related offence, that is to say, any other offence the charge for which was founded on the same facts or evidence.

....

(3)  Subject to subsection (4), the court must direct that the number of days for which the offender was remanded in custody in connection with the offence or a related offence is to count as time served by him as part of the sentence.

(4)  Subsection (3) does not apply if and to the extent that --

....

(b)it is in the opinion of the court just in all the circumstances not to give a direction under that subsection."

(There is then a provision whereby, when giving such a direction, the court must state the relevant number of days.)

"(6)  Where the court does not give a direction under subsection (3), or gives such a direction in relation to a number of days less than that for which the offender was remanded in custody, it shall state in open court --

....

(b)that it is of the opinion mentioned in paragraph (b) of that subsection and what the circumstances are."

15.  The court's powers to deal with a breach of a community order are contained in paragraph 10 of Schedule 8 to the Criminal Justice Act 2003 as follows:

"(1)  Where under paragraph 8 or by virtue of paragraph 9(6) an offender appears or is brought before the Crown Court and it is proved to the satisfaction of the court that he has failed without reasonable excuse to comply with any of the requirements of the community order, the Crown Court must deal with him in respect of the failure in any one of the following ways --

(a)by amending the terms of the community order so as to impose more onerous requirements which the Crown Court could impose if it were then making the order;

(b)by dealing with him, for the offence in respect of which the order was made, in any way in which he could have been dealt with for that offence by the court which made the order if the order had not been made;

...."

There is then a further provision which applies to instances where the community order was made for offences which were not themselves imprisonable offences.

16.  Miss Mahmutaj has pointed out in her written grounds that the judge gave two reasons for declining to give the direction under section 240 that time spent on remand before the original conviction be ordered to count towards the sentence: first, he had given that credit when imposing the non-custodial sentence in the previous case; and secondly, that the time spent on remand had been in respect of a more serious offence.  Neither of those reasons appears in the brief sentencing remarks which we have just read.  However, we have obtained a transcript of the plea in mitigation.  Having listened to counsel's submissions, the judge said this:

"He was held in custody on a different, more severe charge, and he was told when he was sentenced on the last occasion the period spent in custody up to that point would not be credited to him twice.  The period in custody spent up to that point, upon a different charge, was such that it enabled me to pass the community order which I did.  My note tells me I spelt that out to him there and then."

We cannot find, in any part of the transcript of the hearing on 15 June 2009, where it is that the judge "spelt that out" as he said he had done.  If something is said and made clear by a judge in the course of mitigation, but does not appear in the sentencing remarks, that would undoubtedly be sufficient to satisfy the procedural requirements of section 240.  Although this court is not normally provided with the transcript of the plea in mitigation or with any discussion which takes place, in this case we were able to obtain the transcript.

17.  On behalf of the Crown, Mr Bryan has provided a helpful skeleton argument.  He has explained to us what was clearly the reasoning of the judge, bearing in mind the history of non-compliance which the appellant had shown.  There is little on the merits that can be said on his behalf.  Mr Bryan points out that the order was valid and that, having made it, the judge must be in a position to enforce it.  If he is to do so by imprisonment, he could not do so at all except by directing that the time should not count.  Unfortunately, the judge did not so direct.  Mr Bryan drew our attention in his written submission to paragraph 10(1)(c), the provision to which we have referred in respect of community orders made for non-imprisonable offences.  Breach proceedings may nevertheless produce a prison sentence.  As we understand it, Mr Bryan sought to draw an analogy with that to suggest that there was nothing wrong in principle if the eventual total sentence, for the original offence and the breach, amounts in the end to something more than the maximum.  However, we doubt the relevance of that subparagraph in a case such as the present, where the original offence was in fact punishable with imprisonment.

18.  In our judgment Miss Mahmutaj's submissions are well-founded.  On the basis that the judge gave those two reasons in the course of the mitigation discussion, neither reason seems to us to be apt on the facts of this case.  If the judge intended on the first occasion to give credit for the time served before the community order was imposed, it seems to us that, despite the recommendation of the Probation Service, it is not one that he should have imposed by virtue of the decision of this court in Hemmings.  The maximum sentence for this offence was six months.  On an early plea of guilty the judge would have been limited to four or (conceivably) five months, but the appellant had already served that period (the equivalent of ten months) by the time the sentence was imposed.

19.  As to the second reason (the judge's remark that the appellant had been remanded in custody for a more serious offence pending trial), we are unable to see the relevance of that consideration since that is an offence of which he was never convicted and one which the Crown did not pursue to trial.  The reason which the judge gave in his sentencing remarks, "there is no double credit for the time in custody previously", is one with which we have some difficulty.  Undoubtedly he had spelt out clearly that he would send the appellant to prison if he was in breach and did not comply, but that is not the same thing as explaining, as required by section 240, the circumstances in which he decided not to make the direction.  It seems to us that the judge had no valid reason for ignoring the long period already served. 

20.  Finally, we turn to this court's decision in R v Stickley [2007] EWCA Crim 3184, upon which Miss Mahmutaj primarily relies and to which I was a party.  We have disposed of this appeal in a way which is consistent with, but needs no direct reference to, that decision.  It has been the subject of criticism by Dr David Thomas in his commentary in the Criminal Law Review [2009] Crim LR 308.  Dr Thomas draws attention to the fact that on that occasion the court was not referred to section 149 of the Criminal Justice Act 2003, and that in dealing with a breach a court must be able to look at the whole situation as it is at the time of the breach.  As Dr Thomas pointed out, that tends to be confirmed by paragraph 10(2) of Schedule B to the Act. 

21.  Furthermore, Mr Bryan reminds us in his written submissions that Stickley was in any event a different case in that the issue related to the number of days to be credited against a much longer sentence, rather than the issue whether a prison sentence could properly be imposed at all.  Whether this might justify distinguishing that case on its facts is in our judgment doubtful.  Stickley remains binding on this court (at least when this court comprises two judges rather than three); but it, and Dr Thomas' observations about it, may require reconsideration by the full court when a suitable opportunity arises.

22.  Having determined that the prison sentence of four months must be quashed, we need to re-sentence for the original offence of harassment.  We have already referred to the decision of this court in Hemmings.  We will adopt a similar solution in the present case and impose a conditional discharge, such that the appellant will no longer, after today, be at risk of re-sentence for the original offence.  The sentence of four months' imprisonment will therefore be replaced by a conditional discharge for a period of six weeks from the date on which the prison sentence was imposed.

23.  The judge also purported to revoke two magistrates' court orders which were imposed after the date of the original community order in this case, but before the re-sentencing in March.  It is not clear under which power he purported to act, but it is only fair to him, to remark that in the breach report prepared by the Probation Service he was invited to take that course in order to clear all outstanding matters out of the way.  The power of the Crown Court and the magistrates' court to revoke community orders (other than when re-sentencing) appears in paragraphs 13 and 14 of Schedule 8 to the Criminal Justice Act.  It does not appear that the Crown Court had the power to make this order in relation to the magistrates' court orders.  There are occasions on which a Crown Court judge reconstitutes himself, pursuant to section 66 of the Courts Act 2003, a district judge to make such an order.  There is nothing to indicate that the judge did that on this occasion.  The court record does not indicate that anything was said or done to effect such a reconstitution.

24.  The result is that the community orders made by the magistrates remain in force.  Nothing more need be said.  However, it must be made clear to the appellant that the quashing of the prison sentence has had the indirect effect that the community orders made by the magistrates, which include a 50 hour unpaid work requirement, remain in force.  We trust that the Probation Service for the relevant area will be duly notified so that no doubt will exist either in the mind of the Probation Service or in that of the appellant.  

25.  For the avoidance of any doubt, those are the orders made, according to the court record, on 25 June 2009 and 25 November 2009, the first of which was for an offence of common assault and the second of which was for an offence of possession of cannabis.  The unpaid hours which the appellant has already carried out were of course carried out towards the order which remains in force, rather than that which has been revoked.  

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