Fisher, R. v

A sentence for an offence must not exceed the applicable statutory maximum. On a sentence appeal, where a consecutive sentence is unlawful because it exceeds that maximum, the appellate court should quash it and substitute a lawful sentence while preserving consecutivity if separate punishment remains appropriate.

Compliance with a community order may mitigate sentence, but only to the extent justified by the offender’s actual compliance. Previous sentencing decisions on their individual facts provide limited assistance where the offender’s record and risk of further offending are materially different.

R v Fisher concerned an application for leave to appeal against sentence. The applicant had pleaded guilty in the Magistrates’ Court to burglary, aggravated vehicle taking, driving while disqualified and driving without insurance. He was committed to the Crown Court for sentence and initially received a 12-month community order with supervision and drug rehabilitation requirements.

After repeated non-compliance, the Recorder dealt with the breach by imposing two years’ imprisonment for burglary and a consecutive nine months for aggravated vehicle taking, producing a total of two years and nine months. The applicant challenged the overall sentence. The Court of Appeal considered whether the burglary sentence was manifestly excessive and whether the consecutive sentence for aggravated vehicle taking was lawful and appropriate.

1. Leave to appeal was granted and the appeal was allowed to a limited extent. The two-year sentence for burglary was not manifestly excessive. The applicant’s substantial and persistent record of dishonesty, burglary and aggravated vehicle taking, together with his failure to engage properly with the community order, justified an immediate custodial sentence for public protection.

2. The court accepted that some account had to be taken of compliance with the community order. However, the compliance was very limited: the applicant missed more appointments than he attended and sometimes attended after taking drugs, when he could not participate in supervision. There was therefore little basis for mitigation on that account.

3. A consecutive sentence for aggravated vehicle taking was proper because it was a separate offence. The nine-month term imposed by the Recorder was nevertheless unlawful. The offence was summary only and carried a maximum sentence of six months’ imprisonment.

4. Having regard to the applicant’s repeated previous convictions for aggravated vehicle taking and the limited available credit for his guilty plea, the proper sentence for that offence was five months’ imprisonment. The court quashed the nine-month sentence and substituted five months’ imprisonment, consecutive to the burglary sentence. The total sentence was therefore reduced to two years and five months’ imprisonment.

• Court of Appeal (Criminal Division): Leave to appeal was granted. The court quashed the unlawful nine-month consecutive sentence for aggravated vehicle taking and substituted five months’ imprisonment, reducing the total sentence to two years and five months.
• Crown Court at Snaresbrook: Following breach of a community order, the Recorder imposed two years’ imprisonment for burglary and a consecutive nine months for aggravated vehicle taking.
• Magistrates’ Court: The applicant pleaded guilty to burglary, aggravated vehicle taking, driving while disqualified and driving without insurance, and was committed to the Crown Court for sentence.