No: 201405266 A7 
Neutral Citation Number: [2015] EWCA Crim 835
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
Strand
London, WC2A 2LL 

Friday 24th April 2015

 
 
B e f o r e:

LORD JUSTICE DAVIS 

MRS JUSTICE McGOWAN DBE

SIR DAVID MADDISON 
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R E G I N A 

v 

GULAN AHMED KHAN
 
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Mr M Jackson appeared on behalf of the Appellant

Mr L Ingham appeared on behalf of the Crown
 
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J U D G M E N T
1.	MRS JUSTICE McGOWAN:  This is an appeal against sentence by Gulam Ahmed Khan, who is now aged 21.  He appeals by leave of the single judge.  On 27th August 2014, in the Crown Court at Reading, he pleaded guilty to offences relating to the production of cannabis for his own use and on 10th October 2014 he was sentenced to a community order for two years with a requirement that he complete 100 hours of unpaid work.  The appeal brought today is based solely on the length of the term of the community order.  No appeal is brought against the level of sentence, either by way of community order or indeed by the imposition of a commitment for 100 hours of unpaid work.  
2.	The Criminal Justice Act 2003 established a new regime of community sentences, and in Part 12 of the Act it sets out in section 177 the provisions relating to community orders. 

3.	177 Community orders 
(1)	Where a person aged 16 or over is convicted of an offence, the court by or before which he is convicted may make an order (in this Part referred to as a "community order") imposing on him any one or more of the following requirements– 
(a)	an unpaid work requirement (as defined by section 199)
4.	(b).......................

5.	Section 147(1)(a) defined a community sentence as a sentence which “consists of or includes a community order” as defined by section 177. 

6.	Section 177 gives the power to make such an order, imposing on an offender one or more of the now expanded list of requirements as originally set out in that section.  Section 177(5) says that a community order must be of a specified length which can be up to three years' duration.  The end date specified is the date by which the requirement or requirements must have been complied with or completed.  Section 177(5)(b) deals with an order imposing unpaid work as part of the community order and says in terms that that order ceases to be in force at the end date.  There are ancillary powers to revoke or extend, but they have no application to this argument.
7.	The order in this case imposed a requirement of 100 hours unpaid work, and that is clearly within the powers of the sentencing judge as defined by section 199 of the Criminal Justice Act.  Section 200 specifically requires that a period of unpaid work must be performed within a 12 month period, subject to a power to extend which is not relevant here.  By virtue of section 200(3), the order remains in force until the offender has worked through the number of specified hours.
8.	It is clear that the length of a community order should be certain at the time at which it is imposed.  If it is an order to perform a number of hours unpaid work and the statute required that that period of unpaid work be completed within 12 months, then it is a community order of 12 months' duration.
9.	The Crown had sought to resist this appeal, but Mr Ingham very helpfully and fairly concedes the appeal. 
10.	It must be the position that the order itself cannot exist other than as a vehicle through which a particular requirement is performed. The Crown had sought to resist the appeal and relied on the authority of R v Davison 2008 EWCA Crim 2795. That case dealt with the length of a community order to perform unpaid work in combination with notification requirements under section 80(1) of the Sexual Offences Act 2003 and does not assist in determining the question in this appeal.
11.	The learned recorder, in this case, sought to express the view that the order should run longer than the requirement to perform unpaid work because she would want there to be some form of control or power to review or recall the defendant.  
12.	There is no gap created in the sentencing power of the court by this re‑statement of principle and the expression of the definition of the statute.  The sentencing court has a wide range of powers to ensure that an offender remains under the supervision, in the broadest sense of that word, of the court. At the lowest level of offending the court has the power to impose a conditional discharge.  It can within the provisions of section 177, if it is felt appropriate, impose in addition to a punitive requirement an element of supervision which may last longer than the 12 months.  So, for example, in this case there could have been a requirement to perform 100 hours unpaid work within 12 months and in addition a two year period of supervision.  That, however, was not the sentence passed.  In addition, if the offence is one which crosses the custody threshold, the court has the power, if it is so minded, to suspend the sentence and impose a suspended sentence supervision order.  By defining the provisions of section 177 in the way we do today, we do not either create or highlight a gap in the sentencing power of the court. 
13.	Although not raised in argument before us, we think it right to deal with amendments to the powers under section 177 brought into effect by section 44 Crime and Courts Act 2013, Schedule 16 which says,  
14.	2.  In section 177 (community orders) after subsection (2) insert— 
15.	“(2A) Where the court makes a community order, the court must— 
16.	(a)  include in the order at least one requirement imposed for the 
(1)	purpose of punishment, or 
17.	(b)  impose a fine for the offence in respect of which the community order is made, or 
18.	(c)  comply with both of paragraphs (a) and (b). 
19.	(2B) Subsection (2A) does not apply where there are exceptional circumstances which— 
20.	(a)  relate to the offence or to the offender, 
21.	(b)  would make it unjust in all the circumstances for the court to 
(1)	comply with subsection (2A)(a) in the particular case, and 
22.	(c)  would make it unjust in all the circumstances for the court to 
(1)	impose a fine for the offence concerned.” 
23.	The new provision obliges a sentencing court to impose a requirement which is punitive, in addition to requirement which is therapeutic, in any community order unless there are exceptional circumstances. The order must contain at least one requirement.
24.	In principle, the position can be stated quite simply.  A community order is one which enables an offender to be punished and/or receive therapeutic treatment whilst remaining in the community.  The order exists to provide the mechanism through which either the punitive and/or the therapeutic element can be completed.  It cannot be an empty order; it must contain and enforce one or more of the requirements under the now extended section 177.  Accordingly, this appeal has properly highlighted the fact that the sentence imposed in the court below was outside the jurisdiction of that court.  
25.	Accordingly, we quash the sentence imposed below and substitute for it a community sentence, namely a community order which imposes upon the offender a requirement that he perform 100 hours unpaid work within 12 months.
26.	MRS JUSTICE McGOWAN:  Mr Jackson, has he done any of the unpaid work? 
27.	MR JACKSON:  I understand he has done some of the unpaid work.  That is perhaps the most I can assist the court with at this stage. 
28.	MRS JUSTICE MCGOWAN: We will make the 12 month period run from the date of sentence, 10th October 2014.