Neutral Citation Number: [2008] EWCA Crim 3004
 
No: 200804249/A8 
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
Strand
London, WC2A 2LL

Date: Wednesday, 19 November 2008

B e f o r e:

LORD JUSTICE DAVIS 

DAME HEATHER STEEL DBE 
 
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R E G I N A 

v 

CHRISTOPHER OSBOURNE
 
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Miss A Wrottesley appeared on behalf of the Applicant 

Mr B Outhwaite appeared on behalf of the Crown 
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J U D G M E N T 

1.	Dame Heather Steel: We grant leave to the applicant to appeal his sentence.  On 14 December 2007 in the Rotherham Magistrates' Court the appellant, Christopher Osbourne, who is 38 years of age, pleaded guilty to an offence contrary to section 1(2) of the Fraud Act 2006.  The offence was of making a false representation to make a gain for himself or another or cause loss to another or expose another to risk.  For that offence he was sentenced to a community order with an unpaid work requirement of 180 hours.  
2.	On 22 April 2008 he appeared before the Rotherham Magistrates' Court for breaching that community order by failing to comply with the requirements without reasonable excuse.  He had failed to attend on 12 and 19 January 2008.  He told the probation officer that he had sustained a back injury, falling off a ladder, and that he was unfit to work.  On 22 April the Magistrates' Court revoked the community order and the applicant was resentenced to 12 weeks' imprisonment, suspended for 12 months, with a six month supervision order and 180 hours unpaid work requirement.  At that hearing in the Magistrates' Court, and before he was sentenced, he produced a sick note, apparently confirming the back injury and his inability to work.
3.	On 13 June 2008 in the Sheffield Crown Court he pleaded guilty to an offence of doing acts tending and intended to pervert the course of public justice.  On 21 July 2008 he was resentenced to a period of three months' imprisonment for the offence of fraud with a consecutive sentence of two years' imprisonment for the offence of perverting the courses of justice.  That made a total sentence of two years and three months.  
4.	This matter has been referred to this court by the registrar, together with the application for leave to appeal sentence.
5.	The documentation, in particular the Form NG which was produced for this court, indicated that the three month sentence which was imposed was imposed for breach of the suspended sentence, and we were invited by the Registrar to consider whether the judge may have erred in passing that sentence of three months for the breach of the suspended sentence, when the offence of perverting the course of justice pre‑dated the imposition of the suspended sentence, so that there was no breach.  It is clear from the sentencing remarks of the judge and the transcript of the conversation that took place on 21 July 2008 that the learned judge was aware of this.  He then purported to revoke the original order and resentence the appellant for the original offence of fraud.  That sentence was not passed in respect of any  perceived breach of suspended sentence.
6.	Briefly the facts of the two offences are these.  On 24 September 2007 the applicant falsely represented that he was his own step‑son, John Hadfield, with the intention of acquiring a £2,000 loan in order to fund a family holiday.  He surrendered himself to the police and made full and frank admissions in interview.  That offence resulted in the community order which he breached.
7.	At the hearing in the Magistrates' Court on 22 April he handed up the photocopy, to which we have referred, of a sick note from a Dr Kadir, dated 23 September 2007.  That note confirmed that he had a back injury and could not work.  Enquires were made and the note was found to be false.  The doctor was contacted.  He said he had not written a note for the appellant since 23 August 2006, although he had given the appellant's step‑daughter a sick note in December 2007.  The appellant was arrested.  In interview he admitted that he had tippexed out the relevant parts of the sick note which did not cover the relevant date and substituted false information about the back injury.  He had left the doctor's signature on the note and photocopied it.  He shredded the original because the obvious amendments invalidated it.  He denied using his step‑daughter's sick note.
8.	Before sentence the learned judge had the benefit of a letter from the appellant, a pre‑sentence report dated 16 July 2008 from Claire Tweddle, and the antecedents of the appellant disclosed a number of previous court appearances for offences of dishonesty, but none for some years.
9.	Having heard the mitigation, the judge then proceeded to sentence the appellant.  He said during the course of the sentencing remarks:
"You are entitled to full credit for your plea in respect of both of the matters and that is what you will receive, but your position is aggravated because you have a history of deceiving people, using your skills to obtain by deception and steal from your employers.  On this occasion you planned to deceive the probation service and also the sentencing court by altering a medical note, photocopying it and then destroying the original.  That strikes at the very heart of the system.  There are many people the subject of these orders who genuinely are unfit to work.  You probably knew that and decided to take advantage of it.  You have to not only be punished but the sentence has to be imposed to deter other people from doing what you did."
The judge then purported to revoke the original order and to substitute a sentence of three months' imprisonment for fraud and for the offence of perverting the course of justice he imposed a sentence of two years' imprisonment consecutive. 
10.	Miss Wrottesley in her written grounds of application submits that in passing the sentence the learned judge was right to indicate there was a need to impose a punishment with both a punitive and a deterrent element.  She went on to write. 
"... it is not contested that the learned judge  could impose a consecutive sentence."  
She went on to say that in all the circumstances the sentence was manifestly excessive.
11.	In relation to the perverting the course of justice offence she writes that: 
"The act of presenting the fraudulent medical certificate to the court did not achieve the aim of ensuring that the appellant received a substantively lenient sentence.  Although he did not receive a sentence of immediate imprisonment [in the Magistrates' Court], [he] did receive a suspended sentence of imprisonment which was coupled with onerous community requirements."
12.	We are invited this morning to consider two matters.  In relation to the three month sentence, which was passed for the original offence for which the community sentence was imposed and which had been revoked by the magistrates on 22 April, both counsel before us this morning are now in agreement that the learned judge had no power to revoke that order.  It had already been revoked and a suspended sentence imposed.  On behalf of the Crown Mr Outhwaite submits, and we accept, that the learned judge fell into error when he revoked that already revoked original order.  There can be in this case no resentence.  He had no power to make any order in relation to the original offence which led to the community sentence which was breached.
13.	We have been most helpfully referred this morning to Archbold at paragraph 5‑334F in which consideration is given to Schedule 12 paragraph 8 of the Criminal Justice Act 2003.  That deals with offences which are committed in breach of a suspended sentence.  We are satisfied on the submissions that we have heard this morning that the suspended sentence order cannot, and could not, by this judge have been revoked.  That suspended sentence will, therefore, perhaps surprisingly, continue to run for the 12‑month period of suspension which will expire in April 2009.  The sentence of three months' imprisonment must therefore be quashed.
14.	We then go on to consider the appropriate sentence for the offence of perverting the course of justice to which the appellant pleaded guilty.  It is submitted on his behalf that that sentence of two years' imprisonment is manifestly excessive.  The reasons are the appellant's plea, the nature of the offence and his personal circumstances, in that at the time of sentence he was in full‑time employment, he had accommodation and he had renewed his relationship with his partner, and, although, she submits this morning, he had an antecedent record which disclosed previous offences of dishonesty, they had been committed some time ago and it was perhaps not necessary to consider that criminal record as aggravating the circumstances of the present offence.
15.	We accept that the offence in relation to the sick note was a serious offence for which custody was inevitable.  We have to consider, however, whether the sentence of two years may be considered to be manifestly excessive.  
16.	We have been referred this morning to the case of R v Paul Bailey [2006] 2 Cr App R(S) 306 which was a case of a more serious nature than the present.  We have to consider the criminality in the circumstances, of the manufacture and presentation of the false sick note to both the probation service and to the Magistrates' Court on 22 April this year.
17.	We have come to the conclusion that that sentence of two years is manifestly excessive.  Taking into account all the circumstances of the offence, including its seriousness, custody is inevitable.  The sentence is not wrong in principle.  However, we are satisfied that two years was too long.  What we propose to do is to allow this appeal to the extent that we quash the sentence of three months, which was imposed for the original offence, and which was a sentence which was outside the judge's power in this case.  For the offence of perverting the course of justice we quash the sentence of two years and for that we substitute a sentence of 18 months' imprisonment.  The total sentence now is 18 months.