Osbourne, R. v

Where a community order has already been revoked and replaced by a suspended sentence order, a later court has no power to revoke the already revoked community order or resentence the original offence. A suspended sentence order cannot be revoked on the basis of an offence which pre-dated its imposition.

Manufacturing and presenting a false medical certificate to mislead probation officers and a sentencing court is serious conduct for which immediate custody may be inevitable. Nevertheless, the sentence must remain proportionate. A sentence may be manifestly excessive even where it is not wrong in principle and deterrence is required.

The appellant had received a community order for fraud. Following non-compliance, the magistrates revoked that order and imposed a suspended sentence order with unpaid-work and supervision requirements.

At the breach hearing, he produced an altered and false medical certificate to explain his absences. He later pleaded guilty in the Crown Court to doing acts tending and intended to pervert the course of public justice. The Crown Court purported to revoke the original community order and imposed three months’ imprisonment for fraud, followed by two years’ imprisonment for perverting the course of justice.

The appeal concerned whether the Crown Court had power to resentence for the fraud and whether the two-year sentence was manifestly excessive.

1. Appeal allowed in part. The three-month sentence for fraud was quashed. The two-year sentence for perverting the course of public justice was also quashed and replaced with 18 months’ imprisonment.

2. The magistrates had already revoked the community order on 22 April 2008 and imposed a suspended sentence order. The later offence of perverting the course of public justice pre-dated that order. The Crown Court judge therefore had no power to revoke the already revoked community order or to resentence the appellant for the original fraud.

   Having considered Schedule 12 paragraph 8 of the Criminal Justice Act 2003, the court held that the suspended sentence order could not be revoked in these circumstances. It continued to run for its original period of suspension.

3. The manufacture and presentation of a false sick note to probation officers and the magistrates’ court was a serious attempt to deceive the sentencing process. It undermined a system intended to accommodate offenders genuinely unable to comply with community requirements. Immediate custody was inevitable and deterrence was properly relevant.

4. However, the two-year term was manifestly excessive. The court took account of the guilty plea, the appellant’s circumstances, the seriousness of the conduct and the comparative gravity of R v Paul Bailey [2006] 2 Cr App R(S) 306. Although the original term was not wrong in principle, 18 months’ imprisonment was the appropriate sentence. The resulting total sentence was 18 months.

• Court of Appeal (Criminal Division): Leave to appeal sentence was granted. The court quashed the unlawful three-month fraud sentence and reduced the consecutive two-year sentence for perverting the course of public justice to 18 months’ imprisonment.

• Sheffield Crown Court: On 21 July 2008, the court purported to resentence the appellant for fraud and imposed three months’ imprisonment, followed by two years’ consecutive imprisonment for perverting the course of public justice.

• Rotherham Magistrates’ Court: The original community order for fraud was revoked on 22 April 2008 and replaced with a suspended sentence order.