Phipps, R. v

On breach of a community requirement attached to a suspended sentence order, the court’s powers are confined by paragraph 8 of Schedule 12 to the Criminal Justice Act 2003. It may activate the suspended term, reduce that term or amend the order, subject to the statutory injustice exception. It may not revoke the order and impose a fresh sentence for the original offence. The wider resentencing power for breach of a freestanding community order does not apply. Time on remand already reflected in the original suspended sentence should not be credited again on activation.

The court also gave practical guidance that, where mercy is appropriate, a community order may be preferable to an artificially short suspended sentence whose activation is necessarily limited to its original term.

The applicant pleaded guilty at Woolwich Crown Court to burglary, with 14 further burglaries taken into consideration. Although he was eligible for the statutory minimum sentence, the first judge found particular circumstances making that sentence unjust and imposed a 12-month suspended sentence order with supervision and drug-rehabilitation requirements.

He shortly left the residential rehabilitation unit without permission. On admitting breach, a different judge revoked the order and imposed three and a half years’ imprisonment, with credit for 61 days spent on remand. The applicant appealed against that sentence. The central issue was whether breach of a requirement attached to a suspended sentence order permitted revocation and resentencing, or only the statutory responses prescribed by Schedule 12 to the Criminal Justice Act 2003.

1. Appeal allowed. The three-and-a-half-year sentence was unlawful. It was quashed and replaced with 12 months’ imprisonment, activating the term originally suspended.
2. Paragraph 8 of Schedule 12 to the Criminal Justice Act 2003 governed a breach of a community requirement attached to a suspended sentence order. The court could activate the sentence with its original term and custodial period, activate it with a lesser term or period, or amend the order by imposing more onerous requirements or extending the relevant periods. Save where activation would be unjust in all the circumstances, it had to make an activation order.
3. Those powers did not include revoking the suspended sentence order and resentencing the offender for the original offence. The broader power under paragraph 10 of Schedule 8, to deal with an offender as if a freestanding community order had not been made, concerned a different statutory regime. It could not be imported into the regime for suspended sentence orders.
4. The 61 days spent on remand before the original suspended sentence had necessarily been taken into account when that sentence was imposed. They could not properly be credited a second time under section 240 of the Criminal Justice Act 2003 on activation.
5. Obiter: Where exceptional mercy justifies avoiding immediate custody, a court should consider a community order rather than an artificially low suspended sentence. A suspended sentence can be activated only up to its original term, which may leave insufficient powers if it is later breached.

• Court of Appeal (Criminal Division) — allowed the appeal and, in [2007] EWCA Crim 2923, quashed the unlawful three-and-a-half-year sentence. It substituted 12 months’ imprisonment, being the suspended term.
• Crown Court at Woolwich — after the applicant admitted breach of a rehabilitation requirement attached to a suspended sentence order, Judge Byers revoked the order and imposed three and a half years’ imprisonment.
• Crown Court at Woolwich — Judge Anwyl QC had imposed a 12-month suspended sentence order with supervision and drug-rehabilitation requirements for burglary, with further burglaries taken into consideration.