Phipps, R. v [2007] EWCA Crim 2923

Case No 200704469/A5[2007] EWCA Crim 2923
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Venue Royal Courts of JusticeDate Wednesday, 7th November 2007
Strand
London, WC2A 2LL
B e f o r e:
LADY JUSTICE HALLETT DBE
MR JUSTICE KING
HIS HONOUR JUDGE WARWICK MCKINNON
(Sitting as a Judge of the CACD)
Between
R E G I N ACrownv
Between
STEPHEN DONALD PHIPPS
Computer Aided Transcript of the Stenograph Notes ofWordWave International LimitedA Merrill Communications Company190 Fleet Street London EC4A 2AGTel No: 020 7404 1400 Fax No: 020 7831 8838(Official Shorthand Writers to the Court)
Mr E Blackman appeared for ApplicantMiss S Vallaile appeared for Crown
J U D G M E N T
[1]HIS HONOUR JUDGE WARWICK MCKINNON: This appeal demonstrates yet again the complexity of some of the provisions of the Criminal Justice Act 2003, and identifies another pitfall for judges and practitioners.[2]On 11th May 2007 in the Crown Court at Woolwich before Her Honour Judge Anwyl QC, the applicant pleaded guilty to one count of burglary with 14 offences of burglary taken into consideration. On 6th July 2007, before the same judge, he was sentenced to a suspended order of 12 months' imprisonment with a 2 year supervision requirement and a drug rehabilitation requirement. On 27th July 2007 the applicant admitted breaching the suspended sentence order, by leaving a residential rehabilitation unit without permission. He was resentenced by His Honour Judge Byers to three-and-a-half years' imprisonment, with a direction under section 240 of the Criminal Justice Act 2003 that 61 days spent on remand should count towards sentence. His application for leave to appeal against sentence has been referred to the Full Court by the Registrar.[3]The facts of the case are these. At about 12.10 pm on 17th April 2007 a Mrs Tuffin left her home in Erith in Kent. When she returned at 1.55 pm she found her rear kitchen door was open; her next door neighbour's ladder had been used to gain access through an open upstairs window and the kitchen door had been used as an exit. The house had been searched. Property taken included £260 cash, jewellery and a mobile telephone. The applicant's fingerprints were recovered from the inside upstairs window.[4]On 4th May 2007 the applicant surrendered to the police. When interviewed he admitted the offence. He fully co-operated with the police in admitting 14 further burglaries, those to be taken into consideration. In the majority of the cases the applicant took cash, jewellery and electrical goods, such as computers, televisions and cameras. In one case property valued at £8,000 was taken, which included photographs, wedding presents and two wedding rings.[5]The applicant was born on 13th April 1975. He has 31 previous convictions for 86 offences. They include 12 offences of burglary, of which 11 were of a dwelling and one of attempted burglary of a dwelling. At the time of sentence before Judge Anwyl he qualified for a minimum sentence of 3 years' imprisonment under section 111(2) of the Powers of Courts (Sentencing) Act 2000, that is, unless, and referring to subsection (2) itself:
"the court is of the opinion that there are particular circumstances which— (a) relate to any of the offences or to the offender; and (b) would make it unjust to do so in all the circumstances."
[6]Before the court was a pre-sentence report dated 13th June 2007 and a prison report dated 21st June 2007. There were in addition three references indicating motivation to change, including one from his partner who had just given birth.[7]In passing a suspended sentence the learned judge in her careful sentencing remarks, which it will be unnecessary to rehearse in any detail, was acutely aware of the provisions of section 111 but nevertheless found particular circumstances relating to the applicant, which in her judgment made it unjust to pass the minimum 3 year sentence.[8]This case is not before the Court to review still less to criticise the judge's approach or findings, which applied no doubt a good measure of compassion and mercy, and gave full effect to the defendant's early pleas of guilty, his having handed himself in to the police, his demonstration of remorse, his co-operation with the police and the clearing up 14 other burglaries which but for his confession would have remained unsolved, and the judge no doubt had the long-term protection of the public in mind. Account was taken of all the details in the reports and the fact that the appellant felt that he was at a turning point and had addressed his heroin addicition. He had begun detoxifying in prison working with the CARAT Team. His efforts and motivation had continued and he was drug free. He had re-established his relationship with the mother of his child which had broken down at the time of the offences. There were letters of encouragement and support from his partner and relatives, the pre-sentence report itself indicated that he had reached a turning point. The judge found that there were wholly exceptional circumstances for departing from what would otherwise be the expected course as we have indicated.[9]The appellant duly left custody to commence his suspended sentence order with its two requirements. He was not long at the residential drug rehabilitation centre before he left without permission. However, he continued to comply with the supervision part of the order. He was brought back before Woolwich Crown Court, this time before Judge Byers (Judge Anwyl in the interim having retired) and admitted a breach of the programme requirement. This Court sympathizes with the judge in the unenviable situation that confronted him. He viewed the appellant's breach so soon after the order had been imposed as "throwing away the opportunity that he had been given and that he now had to be punished." He felt that he had two options: firstly, to amend the sentence under the 28 day slip rule, or secondly, to revoke the suspended sentence order because it had been breached and to resentence. The learned judge chose the latter, given the restriction on the use of the slip rule, and sentenced the applicant to three-and-a-half years' imprisonment, as we have said.[10]The judge's approach could not be faulted, nor the justice of the case impugned, that is if he had power to proceed in that way given the almost immediate and flagrant nature of the breach of the programme requirement.[11]In his grounds of appeal Mr Blackman submits, firstly, in revoking the suspended sentence order and in resentencing the applicant the judge erred in law. Secondly, the judge's power at the highest was limited to imposing the 12 month sentence that has been suspended. Thirdly, it was wrong in principle to impose a sentence longer than that which the applicant had a legitimate expectation that he would receive in the event of a breach, and fourthly, to allow the judge to impose a sentence greater than originally suspended would render a suspended sentence meaningless. There is force in these submissions.[12]Schedule 12 paragraph 8 of the Criminal Justice Act 2003, deals with the powers of the court where there has been a breach of a community requirement attached to a suspended sentence order. It reads thus:
"This paragraph applies where— (a) it is proved to the satisfaction of a court before which an offender appears or is brought under paragraph 6 or 7 or by virtue of section 192(6) that he has failed without reasonable excuse to comply with any of the community requirements of the suspended sentence order, or. (b) an offender is convicted of an offence committed during the operational period of a suspended sentence (other than one which has already taken effect) and either— (i) he is so convicted by or before a court having power under paragraph 11 to deal with him in respect of the suspended sentence, or. (ii) he subsequently appears or is brought before such a court. (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). (c) the court may amend the order by doing any one or more of the following— (i) imposing more onerous community requirements which the court could include if it were then making the order. (ii) subject to subsections (3) and (4) of section 189, extending the supervision period, or. (iii) subject to subsection (3) of that section, extending the operational period. (3) The court must make an order under sub-paragraph (2)(a) or (b) unless it is of the opinion that it would be unjust to do so in view of all the circumstances..."
These provisions are to be compared with the powers of the court when dealing with a breach of a requirement of a community order in its own right, as opposed to one attached to a suspended sentence order. Here it is Schedule 8 of paragraph 10 of that Schedule which applies. It empowers the court to deal with the offender "in any way in which it could have been dealt with for the offence by the court which made the order as if the order had not been made." In short, revocation and re-sentence, which is what Judge Byers purported to do.[13]In the result the wholly deserved sentence passed by Judge Byers was not a lawful sentence and that is conceded by the Crown in this application. Accordingly the application for leave is granted and the appeal must be allowed. We quash the three-and-a-half year sentence, and we substitute 12 months' imprisonment, activating the suspended sentence, that being the maximum permissible and the term that had been suspended.[14]As far as the 61 days spent on remand up to when the suspended sentence was passed by Judge Anwyl, that must have been taken into account by her when passing the suspended sentence. It would be inappropriate for that to be taken into account a second time, particularly in view of the circumstances of the case, and accordingly no order is made under section 240 of the 2003 Act in respect of those days.[15]Finally, this. As we said earlier, this case is not before the Court to review or criticise the first judge's approach or findings. The lesson to be learned from all this is where a judge feels able to take a merciful course and not to impose an immediate and substantial custodial sentence, which but for exceptional circumstances would have been merited, if not mandatory, it is much better to pass a community order spelling out to the offender the consequences of a breach rather than a suspended sentence artificially low in its terms, limited as it has to be, to a maximum period of 12 months, so that if there is a breach, as has happened in this case, the Court's powers are not limited in the way that they were here.