England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice The Strand London WC2A 2LL
		21 January 2009

THE LORD CHIEF JUSTICE: I will ask Mr Justice Pitchford to give the judgment of the court.

MR JUSTICE PITCHFORD:

1. This is an appeal against sentence by leave of the single judge. Amongst others, it raises the question how the court should deal with a breach of suspended order of imprisonment by the commission of a further offence where an unpaid work requirement added to that order has been fulfilled.
2. The appellant has previous convictions as a juvenile for possessing an offensive weapon; for robbery in September 2003, for which he served a sentence of 18 months' detention in a young offender institution; for theft as an employee in March 2004; and a second offence of possessing an offensive weapon in 2005.
3. On 10 August 2005, when he was aged 20, the appellant committed an offence of burglary by entering a dwelling house in Canning Town and stealing jewellery and electrical items. A fingerprint was found. The appellant was arrested and pleaded guilty. On 1 September 2006, at Snaresbrook Crown Court, the appellant was made the subject of a suspended sentence order under section 189 of the Criminal Justice Act 2003. A sentence of twelve months' imprisonment was suspended for a period of two years. Two additional requirements were imposed under section 189(1)(a), namely an unpaid work requirement for 150 hours, and a requirement to attend a Think First Programme.
4. At 4pm on 30 January 2008 the appellant committed an offence of robbery. He followed a young woman who was walking home from Canning Town underground station using her mobile telephone. She was at that time seven and a half months pregnant. In mitigation the appellant represented that he was unaware that the complainant was pregnant. That assertion was accepted by the sentencing judge. The appellant snatched the telephone and pushed the complainant. She returned home and telephoned the police.
5. The appellant, who had been described, was arrested shortly afterwards still in possession of the complainant's telephone.
6. The complainant was taken to hospital for an examination. Fortunately, all was found to be well.
7. Although at the time of his arrest the appellant claimed to have found the telephone, on 29 April 2008 he pleaded guilty at Snaresbrook Crown Court to the offence of robbery. On 28 May he was sentenced by the deputy judge to three years' imprisonment. The suspended sentence was activated in full and consecutively, making four years' imprisonment in all.
8. Before the deputy judge there was a pre-sentence report. It was recorded that the appellant had complied with both requirements of the suspended sentence order. In particular, he had completed the hours of work required.
9. Two submissions are made by Mr Molloy on behalf of the appellant. The first is that the sentence of three years' imprisonment for the offence of robbery was manifestly excessive. The second is that, in implementing the suspended sentence, the deputy judge failed to take account of that part of the requirements of the suspended sentence order which had been completed successfully by the time the robbery was committed.
10. Breach of a suspended sentence order may arise in one of two ways: either by a failure to comply with the community requirements attached to the order; or by the commission of a further offence during the operational period of the order. In either event, the court dealing with the breach must proceed as directed by Schedule 12 to the Criminal Justice Act 2003, paragraph 8. By subparagraph (2) the court may order the suspended order to take effect unaltered, or order the suspended order to take effect with the substitution of a lesser term, or impose more onerous requirements, or extend the supervision period or the operational periods of the suspended sentence, subject to the statutory maximum provided by section 189(3) and (4). The court is required by subparagraph (3) to order the suspended order to take effect either for the original or for a lesser term, unless it would be unjust to do so in view of all the circumstances, including the extent to which the offender has complied with the community requirements of the original order.
11. A suspended sentence order is a single sentence which will contain at least one community requirement. Since Schedule 12, paragraph 8 acknowledges in subparagraph (3) that it may be unjust to order the term of imprisonment to be served at all in light of the degree to which the community requirements have been completed, it follows that the same consideration must apply to the decision whether, if the sentence suspended is activated, it should be activated in full or only in part.
12. These provisions were summarised by the Sentencing Guidelines Council in its guideline "New Sentences: Criminal Justice Act 2003", which was published in December 2004. At paragraph 2.2.17 the guidance reads:

"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."

13. The deputy judge's sentencing remarks do not reveal that he considered the issue. If he did, he clearly made no allowance for the completion of the work requirement.
14. The offence of robbery was committed sixteen months after the imposition of the suspended sentence order. When he committed the offence of robbery the appellant well knew his liability to serve a twelve month sentence of imprisonment. However, we consider that there should have been some recognition of the appellant's limited progress made under the order.
15. As to Mr Molloy's submissions that a sentence of three years' imprisonment for the offence of robbery was manifestly excessive, we need only refer to the conclusion of the single judge, who remarked that there was nothing wrong with the sentence. In view of the previous convictions to which we have referred, we agree with the single judge. We say no more about that ground.
16. Accordingly, we shall quash the imposition of the sentence of twelve months' imprisonment and substitute for it six months' imprisonment, to run consecutively to the sentence of three years for robbery, making three and a half years' imprisonment in all. The appellant will continue to receive credit for the 118 days spent on remand. To that extent the appeal is allowed.

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