Barrett, R v [2010] EWCA Crim 365

No: 2009/5517/A4[2010] EWCA Crim 365
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Venue Royal Courts of JusticeDate Friday, 12 February 2010
Strand
London, WC2A 2LL
B e f o r e:
MR JUSTICE MACKAY
MR JUSTICE KEITH
Between
R E G I N ACrownv
Between
DANIEL BARRETT
Computer Aided Transcript of the Stenograph Notes ofWordWave International LimitedA Merrill Communications Company165 Fleet Street London EC4A 2DYNo: 020 7404 1400 Fax No: 020 7831 8838(Official Shorthand Writers to the Court)
Miss N Hornby (Solicitor Advocate) appeared for Appellant
J U D G M E N T
[1]MR JUSTICE KEITH: On 28th August 2009 at Nottingham Crown Court, the appellant pleaded guilty to five offences: threatening behaviour (count 1), three offences of damaging property (counts 2, 3 and 4) and assaulting a police officer in the execution of his duty (count 5), a summary offence for which he had been committed to the Crown Court for trial under section 41 of the Criminal Justice Act 1988. On 2nd October 2009 he was sentenced by Judge Butler QC to what the court record records as four weeks' imprisonment for the offence of threatening behaviour (count 1); four weeks' imprisonment on each of the first two offences of damaging property (counts 2 and 3), to be served concurrently with each other but consecutively to the sentence on count 1; four weeks' imprisonment on the third offence of damaging property (count 4), to be served consecutively to the sentences on counts 1, 2 and 3; and four weeks' imprisonment for the offence of assaulting a police officer, to be served concurrently with the other sentences. All these sentences were ordered to be suspended for 12 months with a supervision requirement for 12 months. The total sentence was therefore 12 weeks' imprisonment suspended for 12 months. It is fair to say that the transcript of the judge's sentencing remarks refers to the sentence as being three months' imprisonment suspended for 12 months without any breakdown of the sentences passed on each count. We take it that the judge must have been asked subsequently what the breakdown of her sentences was, which is how the breakdown got into the court record. The appellant now appeals against his sentence with the leave of the single judge.[2]The facts were these. On 3rd June 2009 the appellant and his girlfriend had been arguing. When she got back to their flat, she found the appellant in the communal hallway. He threw bags of shopping at her, waved a Stanley knife around and threatened her. That was the behaviour to which count 1 related. She went into a neighbour's flat to get away from him, and it was later discovered that he had carved abuse on the communal doors. That was damage to which counts 2 and 3 related. The police were called. They found the appellant on a balcony. He appeared to be drunk, and he threatened to jump off the balcony. He was angry and aggressive with one officer in particular who he spat at and threw a beer can at. He then pulled out a Stanley knife and punched the balcony door with his fist breaking a glass panel. This was the damage to which count 4 related. Shards of glass fell on a police officer on the other side of the door cutting his ear. That was what the assault consisted of.[3]The appellant is 28 years old. He has many previous convictions, his record being dominated by offences of dishonesty and failing to surrender to bail. He claimed to the author of the pre-sentence report on him that he could not recall what he had done as he had been drunk at the time. He had a long history of drug and alcohol abuse, although in recent times his drug use was said to have reduced. His offending had for the most part been to fund his drug habit. There was said to be a very high risk of further offending, and a high risk that some of those offences would involve violence. There was a medium risk of harm to others.[4]The maximum sentence for the offences of threatening behaviour and assaulting a police officer was six months' imprisonment. The maximum sentence for the offences of criminal damage was three months' imprisonment. The total sentence could not exceed six months' imprisonment. However, he had been in custody on remand for almost four months by the date on which he was sentenced. There was no reason why if he was sentenced to terms of imprisonment the time he had spent on remand would not count towards his sentence. Thus, even if the judge passed the maximum sentences on him, he would have been released immediately.[5]The appellant was aware of that. That was why, when he first appeared at the Crown Court on 28th August 2009, his counsel asked Judge Butler to sentence him there and then. Even if he had been sentenced on that occasion to the maximum term, he would have been released within a few days. Judge Butler refused to do this. She remanded him in custody for a pre-sentence report because, as she said, she wanted to see whether there was an alternative to a custodial sentence. The appellant next appeared at the Crown Court on 30th September 2009. The pre-sentence report on him did not address whether a community sentence was appropriate because the appellant had said that he would not engage with a community order since he had already served the maximum sentence. Judge Butler was asked once again to sentence the appellant there and then, but she said that she had in mind a suspended sentence with conditions which included an unpaid work requirement. She therefore adjourned sentencing so that a further report could be prepared which addressed the appellant's suitability for such a requirement. It was when the appellant next returned to court on 2nd October 2009 that Judge Butler eventually sentenced him.[6]We can understand why the judge wanted to impose a suspended sentence of imprisonment rather than one of immediate effect. The judge wanted to ensure that the public had a measure of protection from the appellant, and that the appellant himself had the support he needed. That might be better achieved if he had the threat of imprisonment hanging over him, and if he was under the supervision of a probation officer. However, by sentencing him as she did, she was in practical terms passing a sentence which was more severe in its impact on the appellant than the maximum sentence would have been. That was something which in our view the judge had to avoid. It could only have been avoided by passing sentences of imprisonment of immediate effect. Suspending those sentences was, in the circumstances, wrong in principle.[7]That is entirely in line with the approach adopted by the Court of Appeal in Hemmings [2008] 1 Cr.App.R (S) 106. In that case a community order was imposed after the appellant had spent more time in custody on remand than he would have spent had he received the maximum sentence. In stating that the sentence was wrong in principle, Underhill J said at [6]:
"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."
The cases of McCabe and Peppard were cases in which the court had deprecated the passing of a suspended sentence on a defendant who had already served on remand a period equivalent to the suspended term. They were therefore directly applicable to the present case.[8]So what should we do now? In McCabe (1988) 10 Cr.App.R (S) 134, McKinnon J said:
"Under section 11(3) of the Criminal Appeal Act 1968: 'The court shall so exercise their powers under this subsection that, taking the case as a whole, the appellant is not more severely dealt with on appeal than he was dealt with by the court below.' As can be seen in the case of Mah-Wing, the effect of that subsection in relation to a suspended sentence was considered by this court in Thompson (1977) 66 Cr.App.R (S) 130. In that case the Court held that they had no power to order an immediate imprisonment when the court below had ordered that the imprisonment should be suspended, the reason being, as Griffiths LJ said in Mah-Wing - 'that any ordinary person would consider themselves more severely dealt with on appeal if they were sent into prison albeit for a shorter period than if they were given the opportunity of a suspended sentence.'"
In those circumstances, the court substituted a conditional discharge for the suspended sentence of imprisonment. That was also what was done in Hemmings, as well as in Peppard (1990) 12 Cr.App.R (S) 88. Indeed, in Hemmings, Underhill J added at [7]:
"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 [counsel], 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."
[9]We propose to take the same course so as to ensure that there are no doctrinal problems of the kind which the court in Hemmings sought to guard against. Accordingly, we allow the appeal, we set aside the suspended sentences of imprisonment which the judge imposed, and instead we order that the appellant be conditionally discharged for each of the five offences for a period of four months.[10]MR JUSTICE MACKAY: Miss Hornby, I am reminded to tell you that your client failed to sign the form SM that was sent to him. That means we are obliged to adjourn the consideration of the recovery of defence costs order, for what that exercise would be worth, until it is completed. If it is completed there will be no need for such an enquiry. Could you pass that information to him?[11]MISS HORNBY: Yes, my Lord.

Cited in 3 later judgments