No: 01/3966/X3
Neutral Citation Number: [2001] EWCA Crim 2936
IN THE COURT OF APPEAL
CRIMINAL DIVISION
                                Royal Courts of Justice
                               The Strand
                               London WC2
 
                               Friday 21st December 2001
B E F O R E :

LORD JUSTICE LATHAM

MR JUSTICE PITCHFORD

and

HIS HONOUR JUDGE TILLING
(Sitting as a Judge of the Court of Appeal Criminal Division)

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R E G I N A

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DAVID ANDREW BARLOW

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Computer Aided Transcript of the Stenograph Notes of
Smith Bernal Reporting Limited
190 Fleet Street, London EC4A 2AG
Tel No: 020 7421 4040   Fax No: 020 7831 8838
(Official Shorthand Writers to the Court)
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MR JOHN EVISON appeared on behalf of the APPELLANT

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JUDGMENT
(As approved by the Court)
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Crown Copyright 
	Friday 21st December 2001
1.	JUDGE TILLING: On 18th May 2001 this appellant was committed for sentence by the Highbury Corner Magistrates' Court, on his plea of guilty, to the Inner London Crown Court, on a single charge of residential burglary. On 18th June 2001 he was sentenced by His Honour Judge Rountree to twelve months' imprisonment which was ordered to be consecutive to a sentence of two years imposed for a similar burglary committed a few days after the offence with which we are dealing. Application for leave was refused by the single judge, but was renewed before the full court on 29th November 2001, when leave was granted to place this appeal before the full court.
2.	Various updated reports were requested, which are now before us.
3.	The facts of the burglary are straightforward. On 28th June 2000 the appellant broke into a ground floor flat by breaking a window. He ransacked the flat and stole property to the value of £3,200. He was identified by means of DNA evidence from blood found within the flat.
4.	The appellant has a dreadful record, including many convictions for residential burglaries.
5.	The reports available to the sentencing judge showed that the appellant has a long history of drug abuse, and this has been the major factor in his offending. The learned judge rightly endeavoured to put himself in the position of a judge sentencing for both burglaries at the same time and came to the conclusion that three years was the appropriate total sentence, thus passing a sentence of twelve months consecutive to the two years that he was serving.
6.	We can in principle find no fault with his reasoning nor with the sentence that he actually passed.
7.	The matter that has concerned this Court is whether, in view of the progress towards leading a drug-free life that this appellant has made since he has been in prison, he should be further encouraged by this Court allowing him to take up the offer of a residential place, which we understand would be available to him immediately at the Kairos Community in Camberwell.
8.	The two reports asked for by this Court in giving leave to appeal are somewhat contradictory. The prison report indicates for the first time during his sentence a disciplinary offence which has caused his release date to be put back by 31 days; on the other hand, the probation officer's report indicates a continuing determination by the appellant to remain drug free, as he has for the last nineteen months. In that report there is expressed some misgivings by the appellant himself about, in effect, being resentenced at a stage so close to the end of his existing sentence. Having considered all those matters, we have concluded that this dilemma can best be resolved in this way. We will quash the sentence of twelve months' imprisonment and substitute for it a community rehabilitation order for a period of twelve months. There will be a condition attached to that order that he reside as and where directed by his probation officer. To that extent this appeal is allowed.
LORD JUSTICE LATHAM: Do you understand, Mr Barlow, that that means you will be able to go now, but you must ensure that you go to where you are told by the probation service and for the next twelve months will have to reside where the probation service tells you to reside?
THE APPELLANT: Yes.
LORD JUSTICE LATHAM: As you appreciate, you would have been subject to licence anyway?
THE APPELLANT: Yes.
LORD JUSTICE LATHAM: We think it will be helpful to you to have the probation service more closely connected with it; all right?
THE APPELLANT: All right. 
MR BARLOW: Thank you, my Lord.