Stickley, R. v

Where a community order is revoked and the offender is resentenced under Criminal Justice Act 2003, Schedule 8, paragraph 10(1)(b), the sentencing court must conduct the sentencing exercise afresh as at the original sentencing date. It must then apply section 240 separately.

Time spent on remand must count towards the custodial term unless it would be unjust for it to do so. A court cannot withhold that credit because it took the remand period into account when it originally imposed a community order. Any finding of injustice must rest on circumstances available at the original sentencing and be explained in open court.

The applicant received a community order for supplying crack cocaine, theft offences and possession of cannabis. The order included supervision and residential drug rehabilitation requirements. She immediately failed to begin compliance, discarded the travel warrant provided to attend rehabilitation, and did not notify her supervising officer of her address.

On admitting breach, the sentencing court revoked the order and resentenced her to a total of three years’ imprisonment. It directed that her 122 days spent on remand should not count towards that term, on the basis that the remand period had already been considered when the community order was imposed.

With leave granted, she appealed against the refusal of remand credit and the overall sentence as manifestly excessive.

1. Appeal allowed. The court varied the total sentence from three years’ imprisonment to 22 months and directed that 122 days spent on remand be deducted from it.

2. The sentencing judge erred in refusing remand credit. Under Schedule 8, paragraph 10(1)(b) of the Criminal Justice Act 2003, revocation required the judge to resentence for the original offences as he could have done when the community order was first imposed. That was a distinct exercise from the earlier decision to impose a community order.

   If a custodial sentence had been imposed at the original sentencing, section 240 required the remand period to count unless it would have been unjust to allow it. Such a conclusion required identified circumstances and reasons stated in open court. The reason given in July, that remand had been reflected in the earlier community order, could not justify withholding credit because it was unavailable at the original sentencing. The usual section 240 approach described in R v Smalley [2007] EWCA Crim 1747 supported that conclusion.

3. The 28-month term for the Class A drug offence was manifestly excessive. Applying the comparable sentencing approach in Afonso, the court took account of the small supply, the applicant’s addiction, the absence of dealer paraphernalia, the supply to an undercover officer, her early guilty plea and substantial personal mitigation. The appropriate term at the original sentencing was 18 months.

4. Custodial terms for the theft offences remained justified, but totality required reduction. The court substituted four, three and three months respectively, with the latter two concurrent and the four-month term consecutive to the 18-month drug sentence. The cannabis sentence was unchanged.

• Court of Appeal (Criminal Division): In [2007] EWCA Crim 3184, granted leave and allowed the sentence appeal. The three-year resentencing term was reduced to 22 months and remand credit was ordered.
• Sentencing court: On 9 July 2007, following an admitted breach of a community order imposed on 18 April 2007, revoked the order and imposed a total of three years’ imprisonment without credit for time spent on remand.