2017/01266/A2
Neutral Citation Number: [2017] EWCA Crim 1015 
IN THE COURT OF APPEAL
CRIMINAL  DIVISION

Royal Courts of Justice
The Strand
London
WC2A 2LL

Thursday  6th  July  2017

B e f o r e:
LORD  JUSTICE  IRWIN

MR  JUSTICE  HOLROYDE

and

HIS  HONOUR  JUDGE  DICKINSON  QC
 (Sitting as a Judge of the Court of Appeal Criminal Division)

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R E G I N A
 
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NICOLA  JANE  PAGE

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Mr D Cox appeared on behalf of the Appellant

Mr I Sheikh appeared on behalf of the Crown

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J U D G M E N T
Thursday  6th  July  2017

LORD JUSTICE IRWIN:  I shall ask Mr Justice Holroyde to give the judgment of the court.

MR JUSTICE HOLROYDE:
1.  Nicola Page, who is now aged 35, has a number of serious medical and behavioural problems.  She has been addicted to Class A controlled drugs.  She has a number of convictions, including, in the comparatively recent past, for offences of criminal damage, harassment, assault and burglary with intent to steal. 

2.  In 2016 she was living in the home of an older couple.  They reported to the police a number of frightening and upsetting events.  The appellant was charged with offences of robbery, blackmail and criminal damage on dates in September and October 2016.  The criminal damage charge related to an occasion when the householders returned to the property after a few days’ absence and found that the appellant had left it in an untidy state and had smashed the glass of a framed picture hanging on a bedroom wall. 

3.  Having been charged with the various alleged offences, the appellant was remanded in custody.  She remained in custody from 14th October 2016 to 17th February 2017, a period of eighteen weeks.  She appeared before the court and entered not guilty pleas to all charges.  Then at a hearing on 17th February 2017, in the Crown Court at Wood Green, before His Honour Judge Lucas QC, she pleaded guilty to the charge of criminal damage.  The prosecution offered no evidence on the other counts, and not guilty verdicts were duly entered.  

4.  Thus, the appellant fell to be sentenced only for the criminal damage to the picture.  No written pre-sentence report had been prepared, but the learned judge allowed time for the appellant to speak to a liaison probation officer at court.  That officer assessed her as being suitable for a community penalty.  Having heard submissions, the judge sentenced her to a community order for twelve months, with a Rehabilitation Activity Requirement for 35 days.  He explained his reason for doing so in the following terms in his sentencing remarks: 

"The purpose of that is to support you in your drug addiction and, indeed, help you with anger management issues.  You must co-operate with the Probation Service in ensuring you attend when you are required to.  If you do not, then breach proceedings will be instituted against you.  …

...

You are at a very vulnerable stage now.  You know your health is not good.  You know if you continue abusing drugs your life expectancy is going to be pretty short.  You either take this opportunity or you do not.  I cannot do any more than give you the opportunity.  …"

5.  The learned judge also imposed a restraining order for the protection of the householders with whom the appellant had for a time lived. 

6.  The appellant now appeals against that sentence with the leave of the single judge.

7.  The court has the advantage of a progress report prepared by the Probation Service.  It indicates that the appellant has been subject to the conditions of the order.  Her sentence plan has been aimed at dealing with problems of anger management, relationships, substance misuse and thinking, behaviour and attitude.  The court notes that her response in terms of reporting to the probation officer was initially problematic, because the appellant had accommodation difficulties, but, having secured local authority accommodation, some stability was introduced into her life. The update report indicates that because of the appellant's medical problems and her consequent need to attend hospital on three days a week, she sometimes experiences extreme tiredness and mobility difficulties and has thereby been prevented from attending some appointments.  When she has reported for supervision, however, "she engages well and she is determined to make some significant changes in her lifestyle.  It is however evident that interventions with [the appellant] have been rather slow due to her medical condition."

8.  On behalf of the appellant, Mr Cox advances a simple submission. For an offence of criminal damage to property of modest value, as in this case, the maximum penalty is a sentence of three months' imprisonment.  By the time she was sentenced, the appellant had already been in custody for some four months – the equivalent of a prison sentence of eight months or longer.  Thus, says Mr Cox, she had already served longer in custody than the maximum penalty for the offence.  He argues that the fact that she had also been remanded in custody on other charges, of which in the event she was acquitted when no evidence was offered, is nothing to the point.  In those circumstances, Mr Cox submits, the learned judge should have taken the course which he (Mr Cox) invited the court to take, namely, to impose a very short sentence of imprisonment – perhaps of one month – which would have had the effect of securing her immediate release.  Moreover, submits Mr Cox, the community order which the learned judge imposed, in effect, sets the appellant up to fail, because her medical problems and her social and accommodation issues make it difficult for her to comply with the order.

9.  In his submissions to this court today, Mr Cox, conscious that time has passed since the sentencing hearing, submits that, rather than now impose a short custodial sentence, this court should quash the community order and deal with the matter by way of financial penalty.  He adds, however, realistically, that the appellant's means are extremely limited, and he expresses the hope that any financial penalty might, by whatever mechanism, be treated as having been satisfied by the time spent in custody.

10.  The submission is, superficially, an attractive one.  But, as Mr Sheikh has pointed out on behalf of the respondent, there are two obstacles to it.  The first – and in our judgment –    fundamental obstacle is this.  Section 152(2) of the Criminal Justice Act 2003 provides that, where a person is convicted of an offence punishable with custody, the court must not pass a custodial sentence unless it is of the opinion that the offence, or the combination of the offence and one or more offences associated with it, was so serious that neither a fine alone, nor a community sentence can be justified for the offence. It is, in our judgment, impossible to say that the custody threshold had been passed by the commission of an offence which involved nothing more than breaking the glass in a picture frame.  The learned judge could not, therefore, as a matter of law have acceded to the invitation to impose a short custodial sentence, however attractive that might seem to be on a pragmatic basis.

11.  Secondly, even if the first obstacle did not apply, and even if it might have been possible in principle to impose a short custodial sentence, the decision of this court in R v Rakib [2011] EWCA Crim 870, [2012] 1 Cr App R(S) 1, makes it clear that it is not necessarily wrong in principle for a court to impose a community order on an offender who had spent such period of time on remand in custody as would exceed any custodial sentence which might be imposed.  That is a consequence of section 142 of the Criminal Justice Act 2003, which requires the court to have regard to the five purposes of sentencing.  Two of those statutory purposes are the reform and rehabilitation of offenders, and the protection of the public. When an offender receives a custodial sentence, the relevant statutory provisions have the effect that he or she receives credit against the sentence for any time spent remanded in custody. The position is, however, significantly different when a community order is imposed, because section 149 of the 2003 Act provides:

"In determining the restrictions on liberty to be imposed by a community order or any youth community order in respect of an offence, the court may have regard to any period for which the offender has been remanded in custody in connection with the offence or any other offence the charge for which was founded on the same facts or evidence."

Thus, the mere fact that an offender has spent a substantial period remanded in custody does not necessarily mean that the imposition of a community order is wrong in principle.

12.  Here, the seriousness of the offence of damage, when viewed against the background of the appellant's offending history, justified a community order.  There were obvious benefits in making a community order, both in terms of the appellant's rehabilitation and in terms of the protection of the public.  The update report from the Probation Service confirms that some progress has been made and some benefit achieved.  It also confirms that the Probation Service are fully alive to the appellant's personal difficulties and limitations.  We do not accept the proposition that the making of a community order sets the appellant up to fail.

13.  For those reasons we are unable to accept that the sentence imposed by the learned judge was either wrong in principle or manifestly excessive.  It follows that the appeal fails and is dismissed.