Neutral Citation Number: [2013] EWCA Crim 1283
Case No: 2013/1144/A8
IN THE COURT OF APPEAL
CRIMINAL DIVISION 
Royal Courts of Justice
Strand
London, WC2A 2LL 

Wednesday, 12 June 2013
 
B e f o r e:

LORD JUSTICE ELIAS 

MR JUSTICE EDWARDS‑STUART 
 
THE RECORDER OF BRISTOL
HIS HONOUR JUDGE FORD QC 
(Sitting as a Judge of the CACD) 
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R E G I N A 

v 

JAMIE PRICE
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Mr B Smith appeared on behalf of the Appellant 
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J U D G M E N T (Approved)
1.	LORD JUSTICE ELIAS:  On 12th February 2013 before Mr Recorder Blomfield, following a plea of guilty, the appellant was sentenced at the Crown Court at Huntingdon for a single offence of assault occasioning actual bodily harm.  He received a community order with a 24 month supervision requirement and a requirement to attend the General Offending Behaviour Programme which was however contingent on the probation service taking the view that this was appropriate.  He now appeals against sentence by leave of the single judge.  
2.	The material facts can be shortly described.  The appellant was escorted to court by prison officers for a hearing in relation to offences unrelated to this conviction.  He was brought into court handcuffed.  His mother was there and she tried to speak to the judge.  The judge encouraged her to talk through the appellant's legal team but she did not do so and shouted that it was not the appellant's fault.  He became agitated and stood up, as did the complainant, a prison officer.  The appellant lunged towards him and headbutted the complainant on the left side of the forehead.  The appellant was taken to the ground and other officers assisted to restrain him.  The officer sustained a fractured wrist during the struggle and there was a small amount of swelling to his forehead.  
3.	The Crown accepted a basis of plea that the action had not been premeditated and was reckless rather than intentional.  The head-butt was not in that sense deliberate.
4.	  There were then quite inexcusable delays in dealing with this matter.  Although the event took place on 7th December 2011 the appellant was not charged until October 2012.  It took almost six months to get medical evidence regarding the complainant's injury.  There were further delays in interviewing the appellant and obtaining a victim impact statement.  Part of the delay was explained by the fact that the appellant was sent to a secure psychiatric unit for part of that period because of mental health problems and a decision was taken to see how he progressed.  
5.	The consequence of all this was that it was not until 22nd January 2013, that is over 13 months after the incident, that he pleaded to this offence and, as we have said, he was sentenced some three weeks later.  
6.	The appellant had meanwhile been sentenced in March 2012 for various sexual offences.  The judge was informed when sentencing in February 2013 that but for the appellant being remanded in custody because of this offence, he would have been released on licence on 13th November 2012.  We assume he must therefore have spent time on remand prior to being sentenced in relation to those sexual offences.  The licence would have run until 13th February 2014.  He was also subjected to a number of licence conditions in the usual way and to a Sexual Offences Prevention Order which imposed a variety of prohibitions upon him.  He had spent some 91 days in custody, prior to being sentenced for this assault, when he would otherwise have been released on licence.  The effect of the new community sentence was that he is at risk of being returned to prison for breach of its terms until 13th February 2014.  
7.	The appellant had a bad record for various sexual offences and breaching court orders.  The judge recognised in his sentencing remarks that assaulting an officer in the exercise of his duties was extremely serious, but the incident was a matter of some antiquity and the judge was concerned about the delays.  He had regard to the guilty plea and these delays and he did not consider in the circumstances that a custodial sentence, or even indeed a suspended sentence, was appropriate.  At the same time he thought there was a need for some public protection and the appellant should have the opportunity to have ongoing guidance.  Accordingly he passed the community order.  
8.	There are essentially two grounds of appeal.  The narrower ground is that the sentence was unlawful with respect to the programme requirement because the judge left it to the probation service to decide whether it was appropriate for the defendant to undertake that programme or not.  That is not consistent with the requirement of section 202(1) Criminal Justice Act 2003 that the court must specify in the relevant order that the defendant must participate in an accredited programme.  Recent amendments to that section made by section 75(5) Legal Aid, Sentencing and Punishment of Offenders Act 2012 has modified that provision so as to give the responsible officer a wide discretion as to the appropriate programme to follow and the place where it must be undertaken.  But it does not relieve the court of the duty itself to specify that an accredited programme needs to be undertaken, if that is indeed to be part of the sentence; that decision cannot be delegated. The consequence of the amendment is that it is no longer necessary to go back to court with an application for a programme to be changed, where the original identified programme proved to be inappropriate.
9.	The failure by the court itself to specify that a programme needed to be complied with, and to specify the number of daysm was therefore a defect in the order and to that extent the order was unlawful.  We should add that we were told that in fact no programme was ever identified by the probation service. 
10.	The second ground of appeal is that in any event a community order was simply not justified.  It places the appellant at risk of being re‑sentenced for the section 47 offence if he infringes the terms of the supervision order.  Moreover, in so far as the judge sought to justify this by reference to the need to protect the public, counsel submits that the danger to the public did not result from this offence of assault but from sexual offences. The proper way to deal with the risk from that offending was by the imposition of an appropriate sentence in relation to those offences.  That is indeed what was done, as we have indicated, with extensive licence requirements and the appellant being subjected to the Sexual Offences Prevention Order.
11.	Counsel submits therefore that although the judge had intended to impose a less onerous penalty as a result of the delays than he would otherwise have done, in fact it works out to be more onerous.  The appellant has spent 91 days in custody pending sentence and he is at risk for an extended period of being returned to prison.  Counsel submitted in the circumstances the appropriate order was an absolute discharge.
12.	We do not accept that that would be appropriate.  It would not properly reflect the gravity of the attack on this prison officer.  In our view, the appropriate sentence for this offending, given in particular the basis of plea and the fact that he was suffering from certain mental health problems would in fact have been one of six months' imprisonment.  If that had been imposed at the material time then the appellant would have been released on the date of sentence because he had in fact served half the sentence at that date.  He would have been subject to a three month licence period thereafter of course but that would have overlapped with the licence period imposed as a result of the earlier conviction.  
13.	We have considered whether it might be said that this is a more severe sentence than the one imposed by the judge.  In fairness to counsel, we should point out that he assumed that it was, and it was for this reason that he suggested there should be an absolute discharge.  Section 11(3) of the Criminal Appeal Act 1968 provides that this court, when exercising its power to impose a different sentence from that imposed below, must so exercise the power that "taking the case as a whole the appellant is not more severely dealt with on appeal than he was dealt with by the court below".  There are certain authorities in this court which have held that a sentence of imprisonment is necessarily more severe than a community sentence: see McCabe(1998)Cr App R 134 and Peppard (1990)12 Cr App R 88, both following an earlier decision of Mah-Wing 5 Cr App R(S) 347. The test adopted in Mah-Wing was how an ordinary person would have viewed matters.  In Waters and Young [2008] EWCA Crim 2538, this court held that one should not look at this question in the abstract.  David Clark J, giving the judgment of the court (Dyson LJ; Henriques and David Clark JJ) confirmed that the relevant test is how an ordinary person in the particular context of the case would assess matters.  In that case a sentence of imprisonment was imposed in place of the suspended sentence on the basis that it would not have been sensible to describe this as dealing with the appellant more severely since he was entitled to immediate release following the sentence of imprisonment.
14.	  That is precisely the position here.  In determining whether the sentence is more severe or not, one has to look at this pragmatically having regard to the particular circumstances of the case.  We are fully satisfied that to impose a sentence of imprisonment here is in fact less onerous, so far as this appellant is concerned, than the community sentence would be, and we are satisfied that it is the right way to dispose of this case. 
15.	Accordingly, we quash the sentence imposed by the Recorder and we substitute a sentence of six months' imprisonment.  That of course takes effect from the date of the original sentence and therefore it has now been fully served.