Neutral Citation Number: [2010] EWCA Crim 1927
Case No: 2010 000978 A1
IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE CROWN COURT AT WARWICK
MR. RECORDER TAYLOR
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 30/07/2010
Before :

LORD JUSTICE THOMAS
MR. JUSTICE BEAN
and
MRS. JUSTICE SHARP
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REGINA
V
DARREN MARK WHITEHOUSE

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Ian Strongman for the  Appellant
Zaheer Afzal (who did not appear below) for the Crown

Hearing dates : 06 July 2010
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Judgment

Mr Justice Bean 
1.	At about 5 am on 8th March 2009 the Appellant and another man used a concrete block to force their way into a filling station and stole a quantity of cigarettes valued at £3,300 before making their getaway in a stolen BMW car.  The burglary had been caught on CCTV.  Police officers gave chase.  The BMW was driven at speeds of over 80mph in a built up area and through a red light before it was abandoned and the two men alighted and ran off.  The appellant, who had been the driver, was arrested after a short chase.  He declined to comment in interview.  
2.	He was charged with burglary, driving whilst disqualified, taking a motor vehicle without consent and using it with no insurance.  He originally pleaded not guilty but on re-arraignment he pleaded guilty.  By the time he appeared for sentence he had spent 6 months on remand in custody.  He was sentenced to a community order with requirements of drug rehabilitation, supervision for 12 months and a curfew for 3 months.  He attended some supervision meetings but missed others.
3.	On 18th January 2010 the appellant smashed the driver’s side window of a parked car and stole a satellite navigation system from the glove box.  His blood was found in the car and two weeks later he was arrested.  He declined to comment in interview but next day at the Magistrate’s Court he pleaded guilty to theft and was committed for sentence to the Crown Court.  He was of course in breach of the community order imposed in September 2009.  So when he appeared for sentence on 11th February 2010 before Mr. Recorder Taylor he fell to be sentenced for both the 2009 and 2010 offences.  
4.	The Recorder revoked the community order and imposed concurrent sentences of 12 months imprisonment for burglary, 2 months for driving whilst disqualified and 2 months for taking the car without consent, with no separate penalty for the insurance offence.  For the 2010 theft he imposed a sentence of 6 months imprisonment, again concurrent.  He said, “the sentence then… is 12 months, 52 weeks, and you will only have to serve half of that, so you will only serve a total of six months.”  The judge asked what credit was due for time on remand and was told that it was 8 days.  The judge directed that this period should be deducted and made the usual observation that if it proved to be different by a day or so an adjustment could be made administratively.
5.	The grounds of appeal settled by Mr. Ian Strongman, who had appeared at the sentencing hearing before Mr. Recorder Taylor, were straightforward.  He submitted that, “when assessing the overall length of the appropriate prison sentence, the Judge failed to take proper account of the fact that the Defendant had spent nearly six months on remand before being sentenced to a community order on 18th September 2009”.  He also submitted that account should have been taken of the fact that the appellant had complied with his curfew order and had kept most of his supervision and drug rehabilitation appointments.  The argument that for these reasons the sentence was manifestly excessive was the ground on which the appellant was given leave to appeal by the single judge.
6.	We do not accept that the sentence of 12 months was excessive.  The appellant could have had no cause for complaint if a series of consecutive sentences had been imposed amounting to as much as two years.  At any rate the Recorder was taking a very merciful course in making the sentence for the new offence concurrent with those for the 2009 offences.  Even giving credit for such compliance as there had been with the community order, we do not think that the overall sentence can properly be criticised as excessive.
7.	The matter would have ended there, but in oral argument Mr. Strongman advanced a new point.  He submitted that the Recorder had been bound to give credit for the 6 months spent on remand in custody prior to the imposition of a community order in September 2009. (This would, when applied to a nominal sentence of 12 months, have resulted in the appellant serving no further time in custody at all).  Even though the point had not been taken before the learned Judge - on the contrary, he had been told that 8 days’ credit was due - Mr. Strongman submitted that we were bound to give that credit ourselves.  He cited Stickley [2008] 2 Cr. App. R.(S) 33, a decision of a two judge constitution of this court, in which it was held that where a defendant has served time on remand in custody prior to being sentenced to a community order and, on breaching that order and being re-sentenced at a later date, receives a term of imprisonment, the time spent on remand should count towards the latter sentence pursuant to section 240 of the Criminal Justice Act 2003 unless in all the circumstances it is just not to order it to count.
8.	Section 240 of the Criminal Justice Act 2003 provides, so far as relevant, as follows: 
(1)	“This section applies where –
(a)	a court sentences an offender to imprisonment for a term in respect of an offence committed after that commencement of this section, and
(b)	the offender has been remanded in custody … in connection with the offence or a related offence, that is to say, any other offence the charge for which was founded on the same facts or evidence.
(3)	Subject to subsection (4), the court must direct that the number of days for which the offender was remanded in custody in connection with the offence or a related offence is to count as time served by him as part of the sentence.
(4)	Subsection (3) does not apply if and to the extent that –………….
(b)	it is in the opinion of the court just in all the circumstances not to give a direction under that subsection.
(6)	Where the court does not give a direction under subsection (3), or gives such a direction in relation to a number of days less than that for which the offender was remanded in custody, it shall state in open court –.......
(b)	that it is of the opinion mentioned in [subsection (4)(b)] and what the circumstances are.”
9.	The court’s powers to deal with a breach of a community order are contained in paragraph 10 of schedule 8 to the Criminal Justice Act 2003 as follows:
(1)	“Where under paragraph 8 or by virtue of paragraph 9(6) an offender appears or is brought before the Crown Court and it is proved to the satisfaction of the court that he has failed without reasonable excuse to comply with any of the requirements of the community order, the Crown Court must deal with him in respect of the failure in any one of the following ways –
(a)	by amending the terms of the community order so as to impose more onerous requirements which the Crown Court could impose if it were then making the order;
(b)	by dealing with him, for the offence in respect of which the order was made, in any way in which he could have been dealt with for that offence by the court which made the order if the order had not been made.”
10.	Section 240(4)(b) of the 2003 Act contains an unusual use of the term “unjust” since by definition when the subsection applies it will produce a result more adverse to a defendant than if the usual rule under section 240 (3) is applied.  The injustice, therefore, must be to the community as a whole or the victim rather than to the defendant.
11.	It is very common for a sentencing judge to be faced with a defendant whose offences merit, say, two years imprisonment but who has served six months on remand in custody.  Mitigation is advanced on the lines that the defendant has learned his lesson and should be given a sentence which permits his immediate release from prison.  The judge may consider that this is a proper course to follow provided that in the event of further offences being committed the defendant would serve a further period of 6 months in custody (bringing the total to the 12 month custodial period of the 2 year sentence he originally had in mind).
12.	We note that by s 240(7) of the 2003 Act a suspended sentence is to be treated for the purpose of s 240 as a sentence of imprisonment when it is ordered to take effect and is to be treated as being imposed by the order under which it takes effect: see Fairbrother [2008] 2 Cr. App. R. (S) 43.  It is therefore plain that if in the present appellant’s case the original sentencing judge had imposed a suspended sentence order, and Mr. Whitehouse had gone on to commit the further offence in 2010, he would have been entitled under section 240(3) to credit for the time spent on remand (in effect wiping out that element of the sentence) unless the court on the second occasion had made a finding that under section 240(4)(b) that it was just in all the circumstances not to give a direction under section 240 (3) crediting the time spent on remand in custody.  This may be an argument that suggests that the decision in Stickley was correct on the basis that it would be curious if entirely different rules applied depending on whether the first court imposed a suspended sentence order or a community order: see Mari [2010] EWCA Crim 1143. However we are not persuaded this is correct, as a suspended sentence would ordinarily take effect as passed if the terms on which it was suspended were breached, whereas breach of a community order may require re-sentencing as in Stickley and in this case.
13.	In Bell [2010] EWCA Crim 1075 David Clarke J, who had been a member of the Court in Stickley, expressed some doubts about its correctness; and it was subject to criticism by Dr. David Thomas in the Criminal Law Review at [2009] Crim LR 308.  There is, in our view, great force in Dr Thomas’ view, as there is nothing in the wording of paragraph 10(1)(b) of the Schedule which requires the court to ignore what has happened; the words of the paragraph simply limit the power of the court to powers that would generally have been available.  They do not require the court to ignore the reality of what has happened in the meantime.
14.	But even on the assumption, contrary to our view, that Stickley was correctly decided, there is a simple answer to Mr. Strongman’s new point.  We have no doubt that if Stickley had been cited to the Recorder, or he had been told that the time spent on remand in 2009 was prima facie to be credited against the new sentence, he would have imposed sentences totalling two years, less the time spent on remand, so as to achieve his entirely proper objective of ensuring that the Appellant spent another six months in custody.  We cannot substitute that form of sentence ourselves since it would (at least arguably) be in excess of our powers under s 11(3) of the Criminal Appeal Act 1968.  But we can and do hold pursuant to s 240(4)(b) of the 2003 Act that it would be unjust to give the credit for six months on remand in custody against the 12 month sentence imposed by the learned Recorder.  
15.	For these reasons, as we indicated at the conclusion of oral argument, the appeal against sentence will be dismissed.