Custodial sentences – Return to custody – Sentence length
R v Jamie Costello: CA (Crim Div) (Lord Justice Hughes (vice-president), Mr Justice Mackay, Mr Justice Lloyd Jones): 2 March 2010
The appellant (C) appealed against his sentence of 31 months’ imprisonment (Sentence B) following his conviction for assault occasioning actual bodily harm.
C had been sentenced to three years’ imprisonment (Sentence A) for robbery and battery and was released on licence. While on licence, C committed the assault offence and was recalled administratively to prison with nine months of Sentence A unserved. In passing Sentence B, the judge determined that the assault offence would ordinarily have called for a sentence of 12 months’ imprisonment. The judge reasoned that passing such a sentence would have no effect whatever on the time spent in prison. The statutory rule for early release on licence for the fresh offence would operate after six months, at which time the appellant would still not have completed Sentence A, and therefore the fresh offence would attract no separate punishment. The judge therefore passed a sentence of 31 months’ imprisonment, having calculated that that sentence would add six months in custody, to time still to be served under Sentence A, thus achieving the net effect of an additional 12-month sentence. C appealed on the ground that the judge was not entitled to impose the sentence that he did. Held: (1) The relevant statutory provisions were sections 153, 265, 255A to 256 of the Criminal Justice Act 2003, and section 116 of the Powers of Criminal Courts (Sentencing) Act 2000 which had been repealed. The combination of all those provisions particularly the repeal of section 116, the uncertainty of the effect of the administrative recall and the rule in section 153(2), that a sentence had to be commensurate with the seriousness of the offence, led to the clear conclusion that it was not open to the judge to inflate Sentence B in an effort to ensure that C did receive some additional punishment for the new offence. Accordingly, the sentence of 31 months’ imprisonment had to be quashed and replaced with a sentence of 12 months’ imprisonment, which was the sentence the judge indicated he would otherwise have passed.
(2) (Per curiam) The problem faced by the judge was the unintended result of heavily complex sentencing legislation. Behind the myriad statutory provisions which had to be understood, the essential problem was the repeal of section 116 while retaining the rule now contained in section 265. This problem was likely to become more acute, as the unavailability of section 116 became the normal rule. There was a real risk that cases would occur in which administrative recall would keep a re-offending prisoner in custody for the whole of the remainder of the original sentence and, as a result, the subsequent sentence would add nothing or so much less than would be commensurate with the subsequent offence, so as to offend the conscience of the ordinary lay observer. This could not be conducive to the administration of justice. The problem was not new but was becoming more common. An effective solution might be the reinstatement of section 116, so that the proper body, the sentencing court, could consider at the same time the closely related questions of return to prison under the original sentence and the proper sentence for the subsequent offence. In that way, there could be proper coordination of the two terms and their net effect could properly be considered. This was a question for parliament, and not for the instant court.
K Molloy (instructed by Lawtons) for the appellant; J De Burgos (instructed by CPS) for the Crown.