England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL
CRIMINAL DIVISION

		No: 200800783/A4 Royal Courts of Justice Strand London, WC2A 2LL
		28th February 2008

1. MR JUSTICE COULSON: Introduction. The applicant is 22. On 17th January 2008, at the Crown Court at Cardiff, he admitted being in breach of the requirements of a suspended sentence order, comprising 12 months' imprisonment suspended for two years. This order had been made on 17th November 2006 following the appellant's plea of guilty to charges of possession of ecstasy with intent to supply, possession of ecstasy, possession of cocaine, possession of amphetamine and possession of cannabis. The requirements of the order included 150 hours unpaid work, supervision and 20 days education, training and employment. In consequence of his breaches of that order, at the hearing on 17th January 2008 His Honour Judge Bidder QC ordered that the suspended sentence should take effect immediately, with its original custodial period, 12 months, unaltered. That order has been referred by the Registrar of Criminal Appeals to the Full Court because it raises an issue of principle in relation to the activation of suspended sentences.

The Facts of the Offence

2. The facts of the original offence were these. On 3rd February 2006 a search warrant was executed at the appellant's home address in Newport. Recovered from the address were the following items: (1) 20 MDMA tablets; (2) 126 grammes of powder containing MDMA; (3) 4.17 grammes of powder containing MDMA; (4) 13 milligrammes of powder containing MDMA and cocaine; (5) 3.41 gammes of powder containing MDMA and amphetamine; (6) a spoon containing traces of cocaine; (7) an unknown quantity of cannabis. During his interview the applicant claimed that the majority of the drugs found were for his personal use. However, he admitted an intention to sell items (2), (3) and (4) in the list that we have just outlined.

The imposition of the suspended sentence

3. The pre-sentence report, dated 13th November 2006, specified a low to medium risk of re-offending. It suggested that the appellant had been traumatised by the unexpected death of his older brother five weeks previously. It recommended a suspended sentence order. This was a recommendation that, on 17th November 2006, the sentencing judge accepted.
4. There is some suggestion in the papers that this was a relatively lenient sentence given the quantities of drugs found. We certainly consider that the suspended sentence order represented a chance for the appellant. As we shall see, it was one of a number of chances which this appellant failed to take.

The breaches

5. The appellant was back before the court in April 2007 as a consequence of his breaches of the order. The breach was punished with the addition of ten further hours of unpaid work. The order was allowed to continue.
6. The appellant was back before the court again in November 2007 as a result of further breaches of the order. Again, the suspended sentence order was allowed to continue and the breach was this time dealt with by the imposition of a new condition that the appellant attend ten sessions of drug counselling. It appears that on that occasion the judge made it plain to the applicant that this was his last chance. Again, he failed to take it.
7. Almost immediately after that breach hearing, the applicant failed to attend two unpaid work appointments on 13th November and 3rd December. He failed to attend two supervision appointments on 12th and 19th December. He also failed to attend an ETE appointment on 6th December 2007. No reason or excuse has been offered as to why the applicant, who is currently out of work, missed any, let alone all, of those appointments.

The imposition of an immediate custodial sentence

8. This third series of breaches meant that the applicant was back before the court again on 17th January 2008. At that point, as His Honour Judge Bidder recorded in his sentencing remarks, the applicant had grudgingly done 87 hours of unpaid work over a 13 month period, which was an average of just over one hour a week.
9. In sentencing the applicant on that occasion the learned judge said:

"... the question for me is: is it unjust to activate the order? I unhesitatingly consider that it is not unjust to activate the order, nor do I consider it unjust that the term of the order be activated unchanged. You have had every opportunity offered to you; you are not prepared fully to comply with the full terms of the order.

I have borne all these matters in mind but the order will be activated now, with its term unchanged, 12 months' imprisonment."

10. In her attractive submissions to us this morning Miss Thomas realistically concedes, as she conceded before the learned judge, that the activation of a custodial term was inevitable given the history and extent of the breaches.
11. Miss Thomas's principal complaint is that, because the appellant had complied with a part of the supervision order, it was wrong in law to impose the whole of the original custodial term. To that extent, she relies in her written advice upon a question which the judge posed to prosecuting counsel during the opening of the facts. The judge asked this:

"As a matter of principle, why should the term of a suspended sentence be reduced just because half of the other punishment has been in fact performed? Is there a reason in principle why the term of sentence which has been suspended, which is a term that is shorter than would have been imposed for these very serious offences, had a suspended sentence not been imposed, is there authority that in principle I should reduce the term of the suspended sentence to reflect that some of the order has been done."

It appears that the answer given to the judge was that no authority or other principle could be identified.

The principles applicable to the activation of a suspended sentence

12. As Miss Thomas rightly points out, the provisions dealing with breach of a suspended sentence order are set out in Part 2 Paragraph 8 of Schedule 12 of the Criminal Justice Act 2003, a series of provisions which are unnecessarily complex:

"2. The court must consider his case and deal with him in one of the following ways --

(a) the court may order that the suspended sentence is to take effect with its original term and custodial period unaltered,

(b) the court may order that the sentence is to take effect with either or both of the following modifications --

(i) the substitution for the original term of a lesser term complying with section 181(2), and

(ii) the substitution for the original custodial period of a lesser custodial period complying with section 181(5) and (6),

(3) The court must make an order under subparagraph (2)(a) or (b) unless it is of the opinion that it would be unjust to do so in view of all the circumstances, including the matters mentioned in subparagraph (4); and where it is of that opinion the court must state its reasons.

(4) The matters referred to in subparagraph (3) are --

(a) the extent to which the offender has complied with the community requirements of the suspended sentence order."

13. In addition, there are also guidelines issued by the Sentencing Guidelines Council on the question of breach and the reactivation of a suspended sentence order; they are in simpler and clearer terms.

2.2.16:

"The presumption is that the suspended prison sentence will be activated either with its original custodial term or a lesser term unless the court takes the view that this would in all the circumstances be unjust. In reaching that decision the court may take into account the extent to which the offender has complied with the requirements."

2.2.17:

"Where a court considers that the sentence needs to be activated, it may activate it in full or with a reduced term. Again, the extent to which the requirements have been complied with will be very relevant to this decision."

14. It seems to us that the statutory provisions envisage a two stage test. First, where there has been a breach, the court must order that the suspended sentence take effect either in whole or in part unless it would be unjust to do so. The extent of compliance with the original order is relevant to that decision. So, for example, if 95 per cent of the order had been complied with, a court might conclude that it was unjust to order that any part of the custodial term take effect. Secondly, if it is not unjust to activate the suspended sentence, then the court must decide whether or not to impose the original sentence or modify the term. It seems clear from the Schedule that either of those options are available to the court and therefore either of them are available in circumstances where there has been part compliance. Part compliance is, of course, relevant again at this stage, because if there had been substantial and prompt compliance with the order then, even if a suspended sentence is to be activated, the court may be minded to impose a lesser term than that originally specified.
15. Miss Thomas submits that there is some doubt as to whether the judge considered the two stage test. It seems to us by reference to the sentencing remarks, which we have quoted earlier, that the judge may well have followed the two stage test outlined above. It is, however, right that the question that he posed suggested that he considered the matter as raising one question only. In those circumstances, we consider the application made in relation to this sentence as if we were exercising afresh the discretion under the Criminal Justice Act.
16. Applying, therefore, the two stage test, it is plain that in this case it was not unjust to impose a custodial sentence following the breaches of the order. Indeed, Miss Thomas does not suggest otherwise.
17. As to the second stage, it is clear to us that such compliance as there has been on the part of the applicant has been dilatory, spasmodic and, to use the judge's word, grudging. The applicant has been repeatedly in breach of the terms of the order. In those circumstances, although we consider that his part compliance is a factor which should be taken into account in the exercise of the court's discretion, we have concluded that it should not, on the facts of this case, lead to any reduction in the 12 month term.

The imposition of the full term, despite minor compliance

18. Miss Thomas made extremely attractive submissions to us to the effect that, if there had been any compliance with the terms of a suspended sentence order, then some credit ought to be given almost as an automatic consequence. However, it seems to us that it is not appropriate for a sentencing court always to give credit and to reduce the suspended sentence in such circumstances. Community orders and suspended sentences are seen by some sections of the public as a soft alternative to prison. For the public to have confidence in them, they must be properly enforced by the courts. If there are repeated breaches, as there were in this case, then defendants must know that they will face the probability that the full sentence originally imposed will be reactivated. It is also right for us to note that the probation service spend a good deal of time and effort providing the services in respect of which community orders depend. It is important that the courts ensure that such time and resources are not wasted on those defendants who only comply with the terms of the orders when they feel like it. It is also important that the probation service knows that courts may well impose full terms when community service orders and suspended sentence orders are breached; they can then give a clear message to those who are subject to such orders.
19. For all those reasons, although we are extremely grateful to Miss Thomas for her submissions to us this morning, we have concluded that this appeal against sentence should be dismissed.