Davison, R v [2008] EWCA Crim 2795

Case No 2008/4094/A3[2008] EWCA Crim 2795
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Venue Royal Courts of JusticeDate Monday, 3rd November 2008
Strand
London, WC2A 2LL
B e f o r e:
LORD JUSTICE MOSES
MR JUSTICE BURNETT
HIS HONOUR JUDGE MORRIS QC
(Sitting as a Judge of the CACD)
Between
R E G I N ACrownv
Between
ANTHONY DAVISON
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 P Humphries appeared for AppellantMr J Dickinson appeared for Crown
J U D G M E N T

JUDGE MORRIS:

[1]On 19th May 2008 at the Crown Court at Preston the applicant pleaded guilty to two counts of sexual assault contrary to section 3 of the Sexual Offences Act 2003. On 27th June 2008 he was sentenced by Her Honour Judge Lunt to a community order with a requirement that he complete 220 hours of unpaid work before 27th June 2009, that is in a 12 month period, on both counts to run concurrently and was ordered to pay costs of £414. In addition, the learned judge told the applicant that having been convicted of an offence listed in Schedule 3 of the Sexual Offences Act 2003 he was required to comply with the notification requirements under Part 2 of that Act for five years. On 1st July 2008 the learned judge was invited to review the notification requirements referred to in her sentencing remarks but declined to do so.[2]The applicant now seeks leave to appeal against sentence. Unsurprisingly he makes no complaint against the community order or the order for costs. His application is solely to set aside that part of the judge's sentencing remarks which purported to impose the notification requirements. The application has been referred by the Registrar to the full court.[3]As notification requirements are not part of the sentence but arise by operation of law they do not fall within the rights of appeal to this court against sentence. However, in R v Longworth [2006] UKHL 1 at paragraph 20, Lord Mance made it clear that where a judge purports to "order" notification as part of the sentencing process an appellate court may simply set aside that part of the purported sentence relating to notification if the sentence or order imposed did not trigger the making of such a requirement.[4]The facts of the case are not relevant to this application.[5]The notification requirements are set out in Part 2 of the Sexual Offences Act 2003. So far as it is relevant section 80(1) of the Act provides:
"A person is subject to the notification requirements of this Part for the period set out in section 82 ('the notification period') if— (a) he is convicted of an offence listed in Schedule 3..."
So far as it is relevant paragraph 18(b)(ii)(c) of Schedule 3 to the Act includes, among such offences:
"An offence under section 3 of this Act (sexual assault) if— ... (b) in any other case— ... (ii) the offender, in respect of the offence or finding, is or has been— ... (c) made the subject of a community sentence of at least 12 months."
By section 80(2) the relevant period for the notification requirements in this case, if appropriate, was five years. By section 177 of the Criminal

Justice Act 2003:

"(1) Where a person aged 16 or over is convicted of an offence, the court by or before which he is convicted may make an order (in this Part referred to as a 'community order') imposing on him any one or more of the following requirements— (a) an unpaid work requirement (as defined by section 199). ... (5) A community order must specify a date, not more than three years after the date of the order, by which all the requirements in it must have been complied with..."
By section 200 of the Criminal

Justice Act 2003:

"(1) An offender in respect of whom an unpaid work requirement of a relevant order is in force must perform for the number of hours specified in the order such work at such times as he may be instructed by the responsible officer. (2) Subject to paragraph 20 of Schedule 8 and paragraph 18 of Schedule 12 (power to extend order), the work required to be performed under an unpaid work requirement of a community order or a suspended sentence order must be performed during a period of twelve months. (3) Unless revoked, a community order imposing an unpaid work requirement remains in force until the offender has worked under it for the number of hours specified in it."
[6]Paragraph 18(b)(ii)(c) of Schedule 3 to the Sexual Offences Act refers to "community sentence" which is not defined in the Act. We take the view that this includes a community order under the Criminal Justice Act 2003 and neither counsel has argued to the contrary.[7]Mr Humphries, in his helpful submissions on behalf of the applicant, submits that a community order which contains solely an unpaid work requirement to be completed within 12 months is not a community sentence of at least 12 months duration as it is open to the offender to complete the work within the 12 month period and on completion of the work the community order ceases. He relies on Odam [2008] EWCA Crim. 1087, in which this court dismissed a renewed non-counsel application for leave to appeal against conviction for two offences of exposure. The applicant had been made the subject of a community order with only one requirement, namely an unpaid work requirement for 120 hours to be completed within 12 months. He had completed that work well within the 12 month period and he had been made subject to the notification requirements for a period of five years. The court was invited by the Registrar to consider in the circumstances whether the notification requirement applied. Without the benefit of written or oral argument, the court expressed the view that a community order which had only one requirement, namely an unpaid work requirement which had to be completed within 12 months, was not a community sentence of at least 12 months and therefore the notification requirement did not apply. At paragraph 6 of the judgment Blake J said:
"The learned judge did not indicate the length of time of the community order itself, but it was apparent that the unpaid work element would come to an end pursuant to section 200 of the Criminal Justice Act 2003 when the period of unpaid work was completed."
This decision has been the subject of academic criticism on the basis that the length of such an order must be capable of being determined on the date it is made and cannot depend on how long it takes an offender to carry out the required work. Therefore it is suggested that an order made for unpaid work to be carried out within 12 months is a community sentence of 12 months.[8]The problem in our judgment is created by the words used in paragraph 18(b)(ii)(c) of Schedule 3 to the Sexual Offences Act 2003, "the subject of a community sentence of at least 12 months". Although probation orders and community rehabilitation orders used to be expressed to be for a specific period, community orders under the Criminal Justice Act 2003 are not. They are merely expressed as community orders subject to one or more of a number of requirements which are to be in force for a particular period or are to be carried out within a particular period. An exclusion requirement under sections 177(1)(f) and 205 of the Act is an example of the former. An unpaid work requirement is an example of the latter. However, under section 177(5) of the Criminal Justice Act 2003 a court imposing a community order must specify a date not more than three years after the date of the order by which all the requirements must have been complied with.[9]We have had the benefit of helpful written and oral argument on behalf of both the applicant and the respondent which were not available to the court in Odam. These have led us to the conclusion that the length of a community order must be capable of being determined on the date it is made. In our judgment the period specified under section 177(5) of the Criminal Justice Act 2003 by a court when imposing a community order is the relevant period for the purpose of determining the duration of the order under paragraph 18(b)(ii)(c) of Schedule 3 to the Sexual Offences Act 2003 however long it in fact takes the offender to carry out the requirements under the order. It follows that in our judgment the opinion expressed in Odam was wrong.[10]In the present case the date specified by the learned judge by which the unpaid work had to be completed was 27th June 2009, that is 12 months after the date of sentence. In our judgment this was a community sentence of 12 months for the purpose of the notification requirements of Part 2 of the Sexual Offences Act 2003 and the learned judge was correct in saying that the applicant was required to comply with the notification requirements for five years. This application is therefore dismissed.[11]If we had had jurisdiction to hear this application, we would have granted leave to appeal and dismissed the appeal. In the circumstances, we give permission for this judgment to be reported.

Cited in 1 later judgment