ISSUE 5 2008 - Sweet & Maxwell

Crim. L.R. Sentencing 399
requirement, for two years. The appellant had numerous previous convictions for
burglary and was liable to a minimum sentence of three years’ imprisonment under
the Powers of Criminal Courts (Sentencing) Act 2000 s.111(2), unless the court
was of the opinion that there were particular circumstances which would make it
unjust to impose such a sentence in the circumstances. The sentencing judge found
such circumstances to exist. The appellant left the drug rehabilitation centre which
he was required to attend without permission and was eventually brought back
before another judge of the Crown Court for a breach of the requirement of the
order. The second judge stated that the appellant had thrown away the opportunity
that he had been given. He revoked the suspended sentence order and sentenced
the appellant to three and a half years’ imprisonment.
Held, it was submitted that in revoking the suspended sentence order and
resentencing the appellant, the judge erred in law. The Criminal Justice Act 2003
Sch.12 para.8 dealt with the powers of the court where there had been a breach of
a community requirement attached to a suspended sentence order. It empowered
the court to deal with an offender by ordering the suspended sentence to take effect
with the original term unaltered or with a lesser term. Alternatively the court might
amend the order by imposing more onerous community requirements, extending
the supervision period or extending the operational period. Those provisions were
to be compared with the powers of the court when dealing with a breach of
a requirement of a community order as opposed to a community requirement
attached to a suspended sentence order. This was governed by para.10 of Sch.8 to
the 2003 Act, which empowered the court to deal with the offender ‘‘in any way in
which he could have been dealt with for the offence by the court which made the
order if the order had not been made’’.
The result was that the wholly deserved sentence passed by the second judge
was not a lawful sentence. The court would quash the sentence of three and a
half years’ imprisonment and activate the original suspended sentence. The lesson
ofthecasewasthatwhereajudgefeltabletotakeamercifulcourseandnot
impose an immediate and substantial custodial sentence, which but for exceptional
circumstances would have been merited, it is 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 to a maximum period of 12 months,
so that if there was a breach, the court’s powers would not be limited as they had
been in the case before the court.
E. Blackman for the appellant.
S. Vallaile for the Crown.
Commentary. This decision provides a useful illustration of the point made at the
end of the judgment. A suspended sentence order with a community requirement
(which is always obligatory) sounds more onerous than a simple community order, but
its bark may often be worse than its bite. Breach of a suspended sentence order may
be more likely to lead to the imposition of a custodial sentence, in view of Sch.12
para.8(3), which requires the court to activate the sentence in full unless it would be
unjust to do so, but the custodial sentence can never exceed the term of the sentence
which was originally suspended. Breach of a community order does not carry any
statutory presumption that a custodial sentence will follow, but if the court decides
to impose a custodial sentence following a breach of a community order, it is not
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