England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice Strand London, WC2A 2LL
		Monday, 20th December 2010

1. MR JUSTICE TREACY: We preface this judgment by thanking Mr Badger for his succinct and, in our view, accurate submissions. They are model of how the argument should be crystallised and put before the court, and we are grateful to him.
2. This applicant is Martin Alan Bodman. His case comes before the court as an application for leave to appeal against sentence. This court grants leave.
3. In 2009 the applicant pleaded guilty to five offences of burglary and five offences of burglary with intent. None of those burglaries was a dwelling-house burglary.
4. Sentence was passed in September 2009, in the Crown Court at Reading by His Honour Judge John. The appellant was at that stage sentenced to an 18 month community order with a supervision requirement for 18 months and a drug rehabilitation requirement for 6 months. Unfortunately, the appellant went on to offend again and having admitted an offence of burglary with intent, before the Magistrates' Court, was committed to the Crown Court for sentence.
5. On 5th July 2010, again in the Crown Court at Reading and again before the same judge, who had dealt with the matter in September 2009, the applicant was sentenced. In relation to the 2009 matters the community order was revoked and the appellant was resentenced to a term of 30 months to run concurrently on each of the 10 offences.
6. In relation to the 2010 offence, which was a dwelling-house burglary, the appellant was sentenced to a term of 18 months' imprisonment to run consecutively. In addition, six offences were taken into consideration. The total sentence therefore was one of 4 years' imprisonment. The judge also made a direction pursuant to section 240 of the Criminal Justice Act 2003 that 72 days spent on remand should count towards sentence. Those days have accrued in relation to time spent on remand in relation to the 2010 offences.
7. The circumstances are as follows. We begin with the 2010 matters. In April 2010 a householder returned home at about 9.00 pm. The alarm was sounding on his house and when he entered the property he found that patio doors had been smashed and a speaker was on its side. However no property had been taken and nothing else had been disturbed.
8. About 10 days later, this applicant was arrested. That was because his blood had been found at the householder's premises; he had cut himself while gaining entry.
9. The appellant was interviewed. He admitted the burglary but claimed that he had been operating as a result of threats made to him by three other men to whom he owed a drug debt. He claimed he had been dragged to the house and indeed been pushed in through the patio window when he had refused to enter. The judge rejected this account, the applicant having declined an oral hearing on that particular issue.
10. As far as 2009 matters are concerned, the burglaries were, as we have said, non-residential burglaries. They were committed over the course of an evening. Property to the value of over £10,000 was taken and other damage was caused. The property consisted in the main of laptop computers.
11. In passing sentence, in relation to the 2009 offences, the judge indicated that he had already taken account of time spent on remand. He said this in passing sentence upon the appellant and another man who was being sentenced on that occasion:

"...if either of you fall down on the orders which I am going to make you will be brought back before me and re-sentenced afresh for all these matters. Imprisonment will, inevitably, follow and the terms will be of considerable length.

In making the orders which I am about to do, I have already taken into account the fact that you have each spent 114 days on remand. That is one of the factors which enables me to take the step that I am going to, so that if you come back in front of me because you fall down on the orders I am going to make, that time will not count towards your sentence, you have already been credited for it because of the sentence I am going to impose today, so any term I impose, if you fall down on these orders, will start from that day."

12. In passing sentence for the 2010 matters, the judge said he would take into consideration six further offences. Property to a value of at least £1200 had been stolen. One of those matters preceded the 2009 matters. Five of them were subsequent to the making of the community order in September 2009. All of them involved thefts of or from vehicles.
13. This appellant is 33 years of age. He has a bad criminal record. There are 70 offences recorded against him, arising from 28 court appearances. In 1997 he was sentenced to three-and-a-half years for non dwelling-house burglaries. He was sentenced of 15 months in 2000 for two dwelling-house burglaries and 2002 he was sentenced to 5 years for robbery and in 2007, he was dealt with for attempted burglary, not of a dwelling-house.
14. The pre-sentence report indicated, accurately, that this appellant had not stopped offending since he was 15.
15. The reports before the judge at the final sentencing hearing, showed that the response to the community order was as follows. This appellant had successfully completed the drug rehabilitation requirement of the community order. He had also attended the supervision appointments. However his engagement and attitude was described as minimal and at times resistant.
16. Grounds of appeal acknowledge that in relation to the 2010 dwelling-house burglary a sentence of 18 months imprisonment cannot be described as manifestly excessive, in the light of the decision of this court in R v Saw. This appellant's previous record, the fact that the offence was committed during the currency of a community order and the other offences to be taken into consideration combine to make that a realistic concession.
17. However, it is argued that 30 months was too long in relation to the resentencing for the 10 non dwelling-house 2009 offences. It is said that giving some allowance for compliance with the community order, this equates to a 4-year sentence after a trial. It is pointed out that the relevant Sentencing Guidelines Council guideline has a starting point of 18 weeks custody and a range between a high community order and 12 months custody for burglary, not in a dwelling, where the property is valued between £2,000 and £20,000. For burglary involving goods worth over £20,000, the starting point is 2 years. The sentence passed in this case was after an early guilty plea and is said to be out of kilter with the guidelines.
18. On the other side of the coin, the appellant was not of good character as the guideline presupposes. His previous record is a significant aggravating factor. In addition, we note that these 10 offences were committed on a single evening by a team of two men demonstrating a degree of planning and professionalism.
19. It is further submitted that the total sentence was too wrong. After a trial it would represent a term of around 6 years.
20. The appellant also submits that the judge should have given credit for the period of 114 days spent on remand prior to the making of the community order in September 2009. In resentencing, the judge expressly left those days out of account, having warned that he would do so when sentencing in September 2009, in the case of a future breach.
21. He had said that that time spent on remand had contributed to his decision to make a community order. The appellant argues that the judge should have given such credit by reason of section 240(3) of the Criminal Justice Act 2003, and that he was wrong to exercise his power not do so, contained in section 240(4)(b). That subsection provides that section 240(3) does not apply, if in the opinion of the court it is just in all the circumstances not to make such allowance. Reliance is placed on the decision of a two judge constitution in R v Stickley [2008] 2 Cr App R(S) 33. At paragraph 6 of that decision, this court held that the judge was in error in saying that he did not have to apply section 240(3) in resentencing to custody, since the term spent on remand had been taken into account in exercising his discretion not to impose a custodial sentence on the first occasion.
22. That decision was criticised by Dr David Thomas in the [2008] Crim LR 308. Dr Thomas's view was that the power to resentence, under paragraph 10(1)(b) Part II, Schedule 8 of the Criminal Justice Act 2003, which is in identical terms to Part 23 Part 5, Schedule 8 of the Criminal Justice Act 2003, which is in play in this appeal, should not be interpreted as requiring the judge to indulge in the artificial exercise of turning the clock back to the day on which the original order was made and resentencing as if nothing had happened in the intervening period. The words of the relevant paragraph simply limit the power of the court to powers that would have been generally available. They do not require the court to ignore the reality of what has happened in the meantime, since the original community order was made.
23. Those were the criticisms raised by Dr Thomas. In R v Bell [2010] EWCA Crim 1075, David Clarke J expressed doubts about the correctness of Stickley. He was in fact a member of the constitution in Stickley. Moreover a three judge court in R v Whitehouse EWCA Crim 1927 has also expressed doubts about the correctness of Stickley (see paragraphs 12 to 14 of that decision).
24. We have come to the conclusion that the criticisms of Stickley are justified and that the court there took too narrow a view of the language used in Schedule 8. There is in fact nothing which appears in either paragraph 10 or paragraph 23, which requires this court to ignore what has happened since the original order was made. Moreover, it seems to us that the judge's attention on resentencing should be focussed on the language of section 240 which requires him to give credit unless it would be unjust to do so in all the circumstances. That exercise must involve an evaluation of the situation as it confronts the judge at the time of resentencing. It should not be constrained or dictated by forcing the judge to act as if he were in precisely the same position as he had been at the point of sentencing first time. We therefore consider that Stickley was not correctly decided and that it should not be followed.
25. In the circumstances of this case, where the judge had made the position, as to time spent on remand crystal clear at the time of the original sentencing, and where he had expressly taken it into account in deciding not to impose a custodial sentence, we do not consider that he was wrong to decline to give credit when re-sentencing.
26. We return to the other points advanced by counsel. We think there is force in the criticism of the term imposed for the 2009 offences. Allowance had to be made for guilty plea and for some compliance with the community order. We think that having regard to the guideline, the sentence was too long. Having regard to that and overall totality, we think it appropriate to reduce that part of the sentence to one of 18 months concurrent on each matter in place of the 30 months concurrent on each matter imposed by the judge below. The effect of this is that the appellant's total sentence is now reduced from 4 years to 3 years. The 72 days already properly allowed for time spent on remand in 2010 will continue to be credited. To that extent this appeal is allowed.