England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL
CRIMINAL DIVISION

		No: 200705028/A9 Royal Courts of Justice Strand London, WC2A 2LL
		30th November 2007

1. MR JUSTICE MACKAY: On 9th July 2007, this applicant, to whom we grant leave, admitted that she was in breach of a community order with requirements of supervision for 12 months and a drug rehabilitation requirement. That order had been imposed on 18th April 2007 at the same court. On 9th July she was sentenced as follows, the community order was revoked and she was resentenced for the five offences in this way: offence 1, supplying a Class A drug, crack cocaine, 28 months' imprisonment; offence 2, theft, 8 months' imprisonment consecutive; offence 3, theft, 6 months' imprisonment concurrent; offence 4, theft, 4 months' imprisonment concurrent; offence 5, possession of a Class C drug, cannabis, 1 month imprisonment concurrent. The total sentence was 3 years' imprisonment. There was no order under section 240 of the Criminal Justice Act 2003.
2. The underlying offences had happened in this way. There was an ongoing police undercover operation on drug dealers in the course of which this applicant supplied an undercover police officer with .371 grams of crack cocaine for £20. This happened on 12th September 2006. On 8th December following, she stole a woman's handbag in Parsons Green. In it were some bank cards and an i-Pod. The next day she tried to use one of the stolen cards to purchase an item and when the card was declined she was detained. It was discovered that she had also stolen another item from the shop and she was found to be in possession of a small amount of cannabis. That accounted for offences 2 to 5 in the list we have given above.
3. The sentence was a community order and a requirement that she attend at a particular residential drug rehabilitation unit in Weston-Super-Mare, on 18th April, the date of her sentencing and to notify her supervising officer of any change of address. She had been given a bag at the court with some personal items and a travel warrant and those were found discarded a short distance away from the court. She also failed to notify her address. Breach proceedings were instigated and she came before the court on 9th July to be dealt with.
4. It should be said, before going to what the judge said on that occasion, that prior to passing the community order on 18th April the court had adjourned not once but twice to allow for a pre-sentence report and an addendum to that report, and an assessment of her suitability for a drug rehabilitation requirement. We have reason to believe that the judge told the appellant (as she now is) when he eventually sentenced her in April, he having taken the pains he did take to give her the fairest possible treatment, that the only alternative to that order was a custodial sentence which would be in excess of 12 months. It seems to have been the case beyond any doubt that within minutes of receiving that merciful sentence by the court she decided she was simply not going to begin to comply with it.
5. The sentencing remarks on 9th July, so far as relevant, were these. Having said that he passed the community order in place of a suspended sentence, because that would have limited him to a period of 12 months' imprisonment, and having said that the court had been deceived on 18th April, which it plainly had by the appellant, who had not had the first intention of complying with it, he then proceeded to pass sentence for these offences in the way we have described. Having reached the end of the sentences he was passing he then said this:

"The days between the 18th December and 2006 and 18th April 2006(sic) [he meant 2007 -- these were the days she spent remanded in custody] I direct will not count towards your sentence. Those were taken into account.... therefore there will be no days to count towards that sentence because in my judgment it would be unjust to do so since those were already taken into account in passing a non-custodial sentence."

The judge was operating under the provisions of Schedule 8 of the Criminal Justice Act 2003, paragraph 10, when considering what to do for this admitted breach of a community order. His powers were two-fold, as laid down by 10(1)(a) and (b). First, he could have amended the terms of the community order to impose more onerous requirements. He chose not to take that course. That course contains a punitive element, which means that on the occasion of the breach a sentence is substituted which is more than commensurate and contains an element to punish the offender for the breach. Secondly, he could have dealt with the offender for the offence in respect of which the order was made in any way that he could have been dealt with for that offence by the court which made the order, if the order had not be made.

6. Here, in our judgment, the judge was in error in saying that he did not have to apply section 240 of the Criminal Justice Act 2003 to the custodial term that he passed under paragraph 10(1)(b), as that period had been, as he put it, taken into account when he exercised his discretion not to pass a custodial sentence on the original sentencing occasion. This, in our judgment, confuses the two exercises that the judge had to perform on those occasions. The exercise in July was to resentence as he could have sentenced on the first sentencing occasion in April, had he not decided to take the merciful course he did take. If he had on that occasion passed a custodial sentence, as he could have done, he would have been obliged to apply section 240 to it, that is to say to order that all the time spent in custody on remand should count towards that sentence unless, in all the circumstances unless it was not just to do so. If he had reached that conclusion he would have had had to articulate his reasons and state them in open court, identifying the circumstances. Manifestly the reasons that he gave at the July hearing could not have justified such a course in April because they were not then available to him. Therefore, if it was right to deal with this breach by revoking a community order and imposing a custodial sentence, and in principle it seems to us it plainly was, absent any relevant circumstances indicating the contrary, and none are apparent to us, the full days spent in custody on remand should have been ordered to count. Counsel has pointed out that the practice on re-sentencing for breaches, prior to the passage of the Criminal Justice Act 2003; and whom time spent on remand was not automatically deducted by order of the court was (see cases culminating in R v MacKenzie (1988) 10 Cr App R 299 that the court should automatically reduce any custodial sentence imposed on such occasions by twice the time in custody on remand, otherwise that would not have been allowed for.
7. We have also been referred to the Vice-President's decision in the case of R v Smalley [2007] EWCA Crim 1747, which is dissimilar on its facts to the present case because there were in addition to the breach two Bail Act offences. But in that case the Vice-President was saying that the usual order should be made under section 240 as to allowing credit for the period spent on remand.
8. There is force therefore in this first ground, and the time spent on remand, which will be required to be calculated for the perfection of our order today, should be deducted in full from the custodial sentence imposed.
9. The second ground is that the total sentence of 3 years was one which was manifestly excessive. The main component was a 28 month sentence for the Class A possession. The well-known case of Afonso, [2004] EWCA Crim 2342, is in point, in our judgment, and this appeal is close on its facts to it; this appellant was herself an addict; she was holding, as far as can be ascertained, only the drugs supplied; she had none of the paraphernalia of a dealer; and it was a supply to an undercover police officer. On conviction a sentence of two to two-and-a-half years could have been expected. There was an early plea of guilty, and there was personal mitigation of some weight in the form of the very unsatisfactory early life of this appellant - she had been placed in care and exposed to abuse and was now separated from her 2 year old son.
10. In all those circumstances, had the judge chosen to pass a custodial sentence in April 2007 the appropriate term, in our judgment, would have been one of 18 months and 28 months would have been manifestly excessive.
11. As to the other offences it was right, in our judgment, they should have been the subject of custodial sentences and to run consecutively to the main offence. But with an eye to the totality of the sentence, we consider they require to be reduced so that for offences 2, 3 and 4 for which sentences as detailed above were passed, the sentences should be reduced to 4, 3 and 3 months respectively, to run concurrently with each other but the 4 month sentence ordered to run consecutive to offence number 1. The total sentence therefore now becomes one of 22 months in all. We make no change to the sentence passed on offence 5. From this sentence there will have to be deducted 122 days as the time spent in custody on remand.