Breaches of old community-based orders occurring before 16 January 2012 are governed by s 47 of the Sentencing Act 1991 by operation of cl 4 of Schedule 3, not cl 10; cl 10(2) merely excludes pre-commencement breaches from the new regime rather than creating a lacuna. Where both counsel and the sentencing judge proceed on an erroneous basis as to available sentencing options, the Court of Appeal may treat the sentencing process as flawed and reopen the sentencing discretion.
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