No: 200706208/C1 
Neutral Citation Number: [2008] EWCA Crim 1473
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
Strand
London, WC2A 2LL

Date: Tuesday, 24th June 2008

B e f o r e:

LORD JUSTICE MAURICE KAY 

MR JUSTICE PLENDER 
 
THE RECORDER OF NOTTINGHAM
(Sitting as a Judge of the Court of Appeal Criminal Division) 
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R E G I N A 

v 

IAN NOBLE 
 
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Mr R J Hallowes appeared on behalf of the Applicant 
Mr L Wise appeared on behalf of the Crown 
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J U D G M E N T 

1.	LORD JUSTICE MAURICE KAY:  This matter comes before the court after a rather complicated and somewhat unsatisfactory history.
2.	The appellant is now 49 years of age.  On 2nd February 2005, in the Crown Court at Kingston on Thames, he pleaded guilty to an offence of theft of gas on an agreed basis and was sentenced to a community punishment order of 200 hours.  He completed some 80 hours of that order.  The order was itself extended on more than one occasion, because, unfortunately, both the appellant and his wife had health problems and there were valid excuses for not having completed the order within the time originally anticipated.  By early 2007 it seems that the probation service was contemplating an application for revocation of the order because of the difficulties being encountered in relation to its completion.  In the event, however, no such application for revocation was made at that time.
3.	In the spring of 2007 the appellant was evicted from his then accommodation, being the address known to the probation service and to the court.  Of course he ought to have notified the probation service of his change of address.  However, he failed to do so.  As a result of that, the probation service lost contact with him.  They wrote to him, inviting him for interview on 26th June and again on 16th July.  He did not attend for the simple reason that the letters had been addressed to the known address and were not forwarded to the appellant.  That led to the issue of a summons, dated 10th August 2007.  It was directed to the appellant at the previous address and it alleged that he had failed without reasonable excuse to comply with the community order because he had failed to attend the two interview appointments to which we have referred and had failed to keep in touch.  The summons was returnable at Kingston Crown Court on 7th September.  However, it did not come to the notice of the appellant, who had culpably failed to provide a new address, and it seems that it was returned undelivered to the court on the basis that the appellant was not known at the address to which it had been sent.
4.	When he failed to appear on 7th September, the court issued a warrant not backed for bail.  On 13th September the appellant was arrested and produced in custody at the Crown Court on the following day.  He was produced before His Honour Judge Fergus Mitchell.  The appellant was unrepresented.  That is unfortunate, because it appears that at least his solicitor was expected on that occasion.  The probation officer explained to the judge that the appellant had been arrested for driving without a seat belt on the previous day and further explained that the appellant had not received the summons because of the change of address and the lack of notification.  The judge decided to adjourn the matter for two weeks to enable the appellant to obtain legal representation, because, the judge said, he was at risk of a custodial sentence.  The judge remanded the appellant in custody.
5.	The next hearing was on 26th September, on which occasion the appellant and the probation service were represented by counsel.  In the course of a busy day His Honour Judge Mitchell dealt with the appellant three times as the case unfolded.  The upshot was that on the second of the three occasions the appellant admitted being in breach of the 2005 order by reason of his failures to attend interviews in June and July and further admitted that he had wrongly absented himself from the hearing on 7th September.
6.	We have a transcript of all three hearings that day and there was lengthy dialogue between the judge and Mr Hallowes on behalf of the appellant.  It is fair to describe it as not evidencing a meeting of the minds. What the judge eventually chose to do by way of sentence, following the admissions of the appellant concerning the breach of the original order and the failure to appear on 7th September, was to revoke the 2005 order and to sentence the appellant to 240 hours community service for that matter by way of re‑sentencing him, together with a concurrent community punishment order of 240 hours in respect of the failure to appear on 7th September.
7.	The appellant now seeks to appeal virtually every aspect of that decision.  The first thing to note is that there is some confusion about the offence for which he was being sentenced in connection with his non‑appearance on 7th September.  The matter that was put to him, and which he admitted, was put in these terms:
"Do you admit that on 7th September 2007 at this Crown Court you failed to attend in answer to a summons to attend issued on failing to comply with a community order on 10th August 2007?"
The appellant did so admit and confirmed his understanding that the court could now deal with him for that failure to attend.
8.	The confusion is as to whether the judge considered he was dealing with that matter as an offence under Bail Act section 6, or as a contempt of court.  Ultimately, it matters not.  The matter could not properly have been categorised as an offence under the Bail Act for the obvious reason that the appellant was not on bail at the time of his non‑appearance and a requirement of his being on bail is central to an offence under section 6 of the Bail Act.  Nor, it seems to us, could he be said to have been in contempt of court, because, whilst he failed to attend in answer to a summons, the undisputed fact is that he knew nothing of that summons because it had not been served upon him.  It is true that the reason for that was his own neglect in failing to give notice of his change of address, but that was a matter going to his breach of the community service order rather than evidencing a contempt as to which he had no knowledge or intention.
9.	Thus we conclude, and Mr Wise on behalf of the prosecution does not invite us to any other conclusion, that the finding against this appellant in respect of his failure to appear on 7th September was simply wrong in law.  We shall, therefore, quash that conviction, and, of course, the sentence that went with it.
10.	Before leaving that aspect of the case, it is worth observing that the Recorder of Nottingham, who is part of this constitution, informs us that this kind of confusion is not uncommon in the Crown Courts and it not infrequently occurs that somebody is convicted and sentenced for a Bail Act offence or a common law contempt for failing to an attend on an occasion when they had no notice and/or they were not on bail.  We hope that great care is taken in the future to avoid errors of this kind.
11.	We now turn to the original aspect of the case, being the non‑completion of the community punishment order of 200 hours for theft of gas.  If one stands back for a moment, one cannot avoid the observation that the appellant, having been sentenced to a community punishment order of 200 hours originally, having completed 80 of those 200 hours, and having had a good and valid reason for all but two of the absences that were referred to, was required to spend some 12 days in custody before he was finally dealt with by way of a community punishment order of 240 hours' community service.  The offence for which he was being re‑sentenced was an offence of dishonesty, it was not untypical of its kind, but there had been an agreed basis of plea, which accepted that it was not the appellant who had disconnected and by‑passed the metre, but a tenant of his, whereupon the appellant had taken advantage of the situation once he resumed residence in the property.  Essentially Mr Hallowes' submission to us is that the sentence of 240 hours is excessive, bearing in mind the offence, the amount of the original order that had been completed, the fact of the time in custody and the absence of previous custodial experience.  Whilst the appellant has a number of convictions spread out over the years, they can properly be described as being for minor matters and, with one exception, had always been dealt with in the Magistrates' Court by way of fine or community order, the one exception being a fine of £200 for a theft in 1979 imposed in the Crown Court.
12.	We have come to the conclusion that Mr Hallowes' submissions on this aspect of the case are well founded.  We consider the sentence of a community punishment order of 240 hours' community service to have been manifestly excessive.  We take into account the 80 hours previously completed under the original order, the fact that the failure to attend on some 58 occasions was validly excused, as is acknowledged by the probation service, and the fact that the appellant has had to serve that time in custody before he was finally dealt with by the judge on this occasion.  We are also told, and we are content to accept, that the appellant has served some 70 or 80 hours of the new order that was imposed on 26th September last year.
13.	What we propose to do is to vary the order that was made for 240 hours community service by reducing the figure of 240 hours to one of 80 hours, it being our intention that the 80 hours completed since last September, or such part of the 80 hours as has in fact been completed, should count towards the discharge of that order.  To this extent the appeal is allowed.