Hemmings, R v [2007] EWCA Crim 2413

Case No 2007/02845/A2[2007] EWCA Crim 2413
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Venue Royal Courts of JusticeDate Wednesday 3 October 2007
The Strand
London
WC2A 2LL
B e f o r e:
MR JUSTICE UNDERHILL
and
MR JUSTICE GRIFFITH WILLIAMS
Between
R E G I N ACrown- v -
Between
DAVID CHRISTOPHER HEMMINGS
Computer Aided Transcription byWordwave International Ltd (a Merrill Communications Company)190 Fleet Street, London EC4Telephone 020-7421 4040(Official Shorthand Writers to the Court)
Mr A Mathieson appeared for Appellant
JudgmentWednesday 3 October 2007
[1]On 14 March 2007, at the Crown Court at Snaresbrook, before His Honour Judge Zeidman QC, the appellant, who is aged 40, pleaded guilty to one offence of battery and another of criminal damage. He was sentenced to a Community Order with requirements of supervision for 18 months and attendance on an Integrated Domestic Abuse Programme. The indictment contained a number of much more serious counts, but those were not in the end proceeded with. The appellant appeals against sentence by leave of the single judge.[2]In view of the basis on which this appeal is advanced, we need say little about the facts of the offences. They arose in a context of domestic violence and difficulties between the appellant and his partner. The offence of criminal damage occurred in October 2006 when he pursued her to her mother's home and caused £300 worth of damage to the panel of a door by punching it. On 2 December 2006, he went round to his partner's home and found another man there. During the course of an argument he grabbed hold of the victim and pushed him onto a chair in order that he could continue to speak to him in the hope of sorting their differences out.[3]It seems clear that, although the two offences in question appeared on the indictment, the only reason why they came before the Crown Court was the context of the other charges to which we have referred. They are otherwise of a character which would have been heard before the magistrates. The appellant has only minor previous convictions of some age.[4]The crucial point in this appeal is that the appellant had been remanded in custody between the date of his arrest and the date of sentence for a period of 99 days. As Mr Mathieson, his solicitor who appeared below and appears before us, pointed out to the judge, that was equivalent to a custodial term of six months. It is clear that in practice no longer custodial term could (or in any event would) have been imposed had he been on bail until the trial. In these circumstances, Mr Mathieson submitted, it was wrong in principle that the appellant should receive any further substantial punishment. He referred to R v McCabe (1988) 10 Cr App R(S) 134 and R v Peppard (1990) 12 Cr App R(S) 88, where this court deprecated the passing of a suspended sentence on a defendant who had already served on remand a period equivalent to the suspended term. Although the present case is not precisely identical, in that the term imposed by the judge was not a term of imprisonment (albeit suspended) but was a community penalty, Mr Mathieson submits that the principle is equally applicable. As he pointed out, even with a community penalty there remained an element of double jeopardy since the appellant would be at risk of a further custodial term if he breached the requirements of the community order.[5]The judge did not accept that argument. He took the view, based on the contents of the pre-sentence report, that the appellant posed a real risk, particularly to his partner or to other women with whom he might be in a relationship; and that for the protection of such people or the protection of society generally it would be desirable that he should be subjected to a community penalty. Having set out in some detail the contents of the pre-sentence report, the judge said:
"You have never had the benefit of probation intervention and the recommendation of the experienced probation officer is that you should be required to go on what they call an Integrated Domestic Abuse Programme .... I am satisfied that, despite the fact that you have had the punishment of being in prison, that I would be failing in my duty if I left it at that. I need to protect the public. I need to protect future girlfriends and I need, in effect, to protect you from yourself. In those circumstances, I am going to follow the recommendation of the probation officer. I am going to make an order that you attend a course."
[6]We understand, and to a considerable extent sympathise with, the judge's reasoning. It was no doubt the case that both the appellant and the wider community were likely to benefit if he had been obliged to undergo a period of supervision and take the course proposed. Nevertheless it seems to us that the order is wrong in principle. A sentence of a community order, and all the more so one coupled with requirements which have a real impact on the offender's liberty, is a form of punishment. It does not seem to us to be right that the appellant should receive a substantial further punishment in circumstances where he has already received what was in practice the maximum punishment by way of imprisonment which the law could have imposed. That reasoning seems to us to be in line with the reasoning in the cases of McCabe and Peppard to which we and the judge were referred.[7]In the result we feel obliged to allow the appeal. In McCabe and Peppard the court took the course of imposing a conditional discharge. Mr Mathieson submitted to us that even that was inappropriate because the effect of a conditional discharge might be that if the appellant committed a further offence he would be liable to be re-sentenced for the present offence. We are not sure that that is a valid objection. The restriction which weighed with the court in McCabe and in Peppard was that contained in section 11(3) of the Criminal Appeal Act 1968, which precludes the court from dealing more severely with the appellant. We do not see how a sentence of conditional discharge can be described as more severe than a community order. Nevertheless, insofar as there is a potential problem of the sort identified by Mr Mathieson, it can be guarded against by making the term of the conditional discharge such that it will have expired by today's date. With that in mind we make an order of conditional discharge with a term of four months. I hope the dates work, Mr Mathieson. I have not checked them, but I think they should.[8]MR MATHIESON: I think they will, my Lord. The sentence was in April, so that the four months will have expired.[9]MR JUSTICE UNDERHILL: Thank you. The sentence will be on both counts concurrent.

Cited in 3 later judgments