Williams, R v

At a first breach hearing, immediate imprisonment may be wrong in principle where the breach is limited, there has been partial compliance, compensation remains payable, and realistic non-custodial sanctions are available. The sentencing court must address whether immediate custody is the only appropriate option. It must take account of material mitigation and of the probation service’s recommendation.

Where a custodial sentence imposed for breach has already been substantially served, an appellate court may substitute a conditional discharge rather than restore an otherwise appropriate community order if restoring it would be unjust. A compensation order may remain in force.

The appellant had pleaded guilty to two offences of fraud contrary to section 1 of the Fraud Act 2006. She received concurrent twelve-month community orders, including 80 hours’ unpaid work, and compensation orders totalling £4,125.

After she failed to attend unpaid work on two occasions without acceptable evidence, breach proceedings were brought. Although she had completed some hours and probation proposed that the order continue with a financial penalty, the Crown Court revoked the order and imposed concurrent sentences of three months’ immediate imprisonment.

She appealed against those sentences with the leave of the single judge. The central issue was whether immediate custody at this first breach hearing was justified.

1. Appeal allowed. The immediate sentences of three months’ imprisonment were wrong in principle.

2. Community orders must be complied with, and breach proceedings properly bring non-compliance before the court. However, the Recorder did not address material considerations before imposing immediate custody. Those considerations included the existing compensation orders, the appellant’s employment and ability to pay compensation, her previous good character, and her partial completion of about 20 per cent of the unpaid-work requirement.

3. The appellant had breached on only two occasions. The correspondence also showed a continuing, though inadequate and conditional, willingness to undertake unpaid work. The probation service did not propose imprisonment; it recommended a financial penalty. The Recorder’s short reasons did not engage with those matters.

4. The Recorder also failed to consider whether immediate custody was the only sentencing option. It plainly was not. A financial penalty or additional unpaid-work hours could have marked the seriousness of the appellant’s casual and inadequate approach to the order.

5. The court did not disturb the revocation. It varied the sentences for the fraud offences by substituting conditional discharges for twelve months. The compensation orders remained unaffected, but the time for payment was extended by six months. The original community order had been the right sentence, but reinstating it after the appellant had served two months’ imprisonment would be unjust.

• Court of Appeal (Criminal Division): Allowed the appeal against the immediate custodial sentences imposed following breach proceedings. The court substituted conditional discharges for twelve months and extended the time for payment of compensation.
• Crown Court at Wood Green: On 27 March 2019, revoked the community order and imposed concurrent sentences of three months’ immediate imprisonment for the two fraud offences.
• Crown Court: On 9 November 2018, imposed concurrent twelve-month community orders with an 80-hour unpaid-work requirement and compensation orders of £360 and £3,765.