Burns, R. v [2009] EWCA Crim 1907

[2009] EWCA Crim 1907Case No 2009/02859/A1
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Venue Royal Courts of JusticeDate Thursday 3 September 2009
Between
R E G I N ACrown
The Strand
London
WC2A 2LL
B e f o r e:
LORD JUSTICE RIX
MR JUSTICE COLLINS
and
HIS HONOUR JUDGE PERT QC
(Sitting as a Judge of the Court of Appeal Criminal Division)
__________________
- v -
Between
THOMAS BURNS__________________Computer Aided Transcription byWordwave International Ltd (a Merrill Communications Company)165 Fleet Street, London EC4Telephone 020 7404 1400; Fax No: 020 7404 1424(Official Shorthand Writers to the Court)__________________Mr H Baker appeared for AppellantMiss J Treharne appeared for Crown____________________J U D G M E N T
[1]This is an appeal against sentence, leaving having been given by the single judge. The appellant pleaded guilty at a preliminary hearing to the burglary of a dwelling-house. On 14 May 2009, in the Crown Court at Cardiff, he was sentenced to three-and-a-half years' imprisonment.[2]The appellant was arrested at the scene of the burglary and made no comment in interview, save to say that he was addicted to heroin and crack cocaine. He has a long and depressing history of offending, including 38 offences of theft, burglary and other dishonesty. By virtue of his convictions for dwelling-house burglary, he was liable under section 111 of the Powers of Criminal Courts (Sentencing) Act 2000 to a sentence of at least three years' imprisonment unless there were particular circumstances which related to the offence or the offender which would make it unjust in all the circumstances to pass such a sentence.[3]The pre-sentence report prepared for the lower court said that the appellant was desperate to stop the cycle of offending into which he had fallen and was ready for change. The report recognised that custody was the likely outcome but said that if the court were prepared to consider an alternative there would have to be an adjournment for an assessment of the appellant's suitability for a drug rehabilitation requirement. The appellant had not previously had the benefit of such an order.[4]In written submissions counsel for the appellant drew our attention to R v Bradley (1983) 5 Cr App R(S) 365. Whilst not authority for any proposition, that case illustrates the benefit of looking at cases such as this to see if the time is right to seek to break the cycle of offending by a constructive disposal.[5]We in this court have had the benefit of an assessment of the appellant ordered by the learned single judge. That assessment recommends a drug rehabilitation requirement of medium intensity for a period of nine months as part of a community order, including supervision.[6]We accordingly quash the sentence of imprisonment passed in the court below and substitute a community order consisting of a period of supervision for two years and a drug rehabilitation requirement of medium intensity for a period of nine months. It must be made clear to the appellant that breach of those orders will result in his facing the sort of penalty against which he has just appealed.[7]The case was adjourned from Tuesday 1 September because at first we believed that there was an insuperable obstacle to attaining the result that we sought, namely the substitution of the sentence of imprisonment with a drug rehabilitation requirement with a suitable sanction in the event of breach.[8]We asked that counsel for the Crown attend the adjourned hearing and we are grateful to Miss Treharne for her assistance in leading us through a legislative trail that was not easy to follow.[9]The problem as we perceived it was this. Section 111 of the Powers of Criminal Courts (Sentencing) Act 2000 says:
"Minimum of three years for third domestic burglary (1) This section applies where -- (a) a person is convicted of a domestic burglary committed after 30 November 1999; (b) at the time when that burglary was committed, he was 18 or over and had been convicted in England and Wales of two other domestic burglaries; and (c) one of those other burglaries was committed after he had been convicted of the other, and both of them were committed after 30 November 1999. (2) The court shall impose an appropriate custodial sentence for a term of at least three years except where 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."
[10]Section 150 of the Criminal Justice Act 2003 says that the power to make a community order is not exercisable in respect of an offence for which the sentence "falls to be imposed under section 111(2)".[11]On the face of it those two sections seem to say that where the court decides not to impose the statutory minimum sentence under section 111 its powers would not include the imposition of a community order.[12]The answer, it transpires, is to be found in section 164 of the Powers of Criminal Courts (Sentencing) Act 2000 as amended:
"References in this Act to a sentence falling to be imposed -- (a) under section .... 111(2) above, are to be read in accordance with section 305(4) of the Criminal Justice Act 2003."
[13]Section 305(4) of the 2003 Act reads:
"For the purpose of this Part -- (a) .... (b) a sentence falls to be imposed under section .... 111(2) of the Sentencing Act if it is required by that provision and the court is not of the opinion there mentioned ...."
[14]We are therefore satisfied that we can properly make the order that we wished to make on Tuesday but feared that we could not. We think that it would be helpful to judges if it were made clearer in Archbold that that route is available.

LORD JUSTICE RIX: The appeal is allowed. The sentence of three-and-a-half years' imprisonment is quashed and it is replaced by a community order which includes a drug rehabilitation requirement for nine months and supervision for two years.

[16]MR JUSTICE COLLINS: The appellant is not here. It should be made absolutely clear to him that if he breaches the community order he faces the prospect of the imposition of another substantial sentence of imprisonment. 17. ___________________________________