Hemmings, R v

A community order with liberty-restricting requirements is a form of punishment. It should not be imposed as a substantial further punishment where time spent on remand has already amounted, in practical terms, to the maximum custodial sentence that could have been imposed for the offences. The rehabilitative or protective benefits of supervision cannot justify that additional punishment. A conditional discharge may instead be imposed where it is not more severe than the order replaced; its term may be fixed so that it has already expired, removing any later risk of re-sentencing for the original offences.

The appellant pleaded guilty at Snaresbrook Crown Court to battery and criminal damage arising from domestic difficulties. He had spent 99 days on remand before sentence, a period equivalent in practice to a six-month custodial sentence.

The judge imposed an 18-month community order requiring supervision and attendance on an Integrated Domestic Abuse Programme. The judge considered that order necessary to protect the appellant’s partner, future partners and the public. The appellant appealed against sentence, contending that his remand custody meant that no further substantial punishment should be imposed.

1. Appeal allowed. The 18-month community order was wrong in principle and was replaced by concurrent conditional discharges for four months, which had already expired.
2. The appellant’s 99 days in custody on remand represented, in practical terms, the maximum imprisonment that could have been imposed for these offences. Although the judge was entitled to regard supervision and an Integrated Domestic Abuse Programme as beneficial to the appellant and the public, a community order with requirements materially restricting liberty remained a form of punishment. It was therefore impermissible to impose it as a substantial additional punishment after the appellant had already undergone that practical maximum.
3. The court regarded this conclusion as consistent with the reasoning in R v McCabe (1988) 10 Cr App R(S) 134 and R v Peppard (1990) 12 Cr App R(S) 88, notwithstanding that those cases concerned suspended imprisonment rather than a community order.
4. The restriction in section 11(3) of the Criminal Appeal Act 1968, preventing the appellate court from dealing with an appellant more severely, did not prevent a conditional discharge replacing the community order. A conditional discharge was not more severe than that order. The four-month term was selected to ensure that it had expired by the date of the appeal, thereby avoiding any practical risk of the appellant later being re-sentenced for these offences.

• Court of Appeal (Criminal Division): Allowed the appeal against sentence and substituted concurrent conditional discharges: [2007] EWCA Crim 2413.
• Crown Court at Snaresbrook: On 14 March 2007, following guilty pleas to battery and criminal damage, imposed an 18-month community order with supervision and an Integrated Domestic Abuse Programme requirement.