Whitehouse, R. v

Under Criminal Justice Act 2003, section 240, credit for time spent on remand is ordinarily mandatory. The exception in section 240(4)(b) permits refusal where credit would be unjust to the community or the victim, rather than merely disadvantageous to the offender.

On resentencing following breach of a community order, the court may refuse earlier remand credit where allowing it would defeat a proper custodial sentencing outcome. The court must make the statutory finding that refusal is just in all the circumstances. The Court of Appeal also expressed the view, without needing to decide the appeal on that ground, that the statutory power to resentence after breach does not require the court to disregard intervening events.

R v Whitehouse concerned an appeal against sentence following burglary and associated motoring offences in 2009, for which the appellant had received a community order, and a further theft in 2010. He had spent almost six months on remand before the community order was imposed.

At the Crown Court at Warwick, the Recorder revoked the community order and imposed concurrent terms, producing a total of 12 months’ imprisonment. The appellant challenged the sentence as excessive. At the oral hearing he also relied on Criminal Justice Act 2003, section 240, contending that the earlier remand period had to be credited against the later custodial sentence.

The central issue was whether credit could properly be refused under section 240(4)(b).

1. Appeal dismissed. The concurrent sentence of 12 months’ imprisonment was not manifestly excessive. The Recorder had taken a merciful course by making the sentence for the 2010 theft concurrent with those imposed after revocation of the community order.

2. Section 240(3) of the Criminal Justice Act 2003 generally requires remand custody to count as time served. However, section 240(4)(b) removes that requirement where the court considers it just in all the circumstances not to give credit. The court held that the resulting injustice must be to the community or the victim, rather than to the offender.

3. Had the Recorder known that the earlier remand period was prima facie creditable, he would have imposed sentences totalling two years less that period in order to secure a further six months’ custody. The Court of Appeal could not itself substitute that formulation, since doing so might exceed its powers under section 11(3) of the Criminal Appeal Act 1968. It could, however, make the finding under section 240(4)(b). It held that crediting the six months against the 12-month sentence would be unjust, and therefore refused credit.

4. In reasoning not necessary to the dismissal, the court was unpersuaded that Stickley was correctly decided. Paragraph 10(1)(b) of Schedule 8 to the 2003 Act limits the resentencing powers after breach of a community order, but does not require the court to ignore events occurring after the order. The position differs from activation of a suspended sentence, which section 240(7) expressly treats as a sentence of imprisonment for section 240 purposes.

• Court of Appeal (Criminal Division) — dismissed the appeal against sentence: [2010] EWCA Crim 1927.
• Crown Court at Warwick — Recorder Taylor revoked the community order and imposed concurrent sentences totalling 12 months’ imprisonment.