Brown, R v [2004] EWCA Crim 496

Case No 2003/04281/A9[2004] EWCA Crim 496
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Venue Royal Courts of JusticeDate Friday 27 February 2004
The Strand
London
WC2A 2LL
B e f o r e:
LORD JUSTICE RIX
and
MR JUSTICE TREACY
Between
R E G I N ACrown- v -
Between
DARREN MICHAEL BROWN
Computer Aided Transcription bySmith Bernal, 190 Fleet Street, London EC4Telephone 020-7421 4040(Official Shorthand Writers to the Court)
MR M BONNELL appeared for APPELLANTMR N L NEALE appeared for CROWN
J U D G M E N TFriday 27 February 2004
[1]This matter comes before the court as a result of a reference by the Criminal Cases Review Commission. On 29 January 2003, in the Crown Court at Sheffield, before His Honour Judge Keen QC, the appellant was sentenced, having previously pleaded guilty, for a burglary of a dwelling-house.[2]The burglary took place in the early hours of the morning of 7 August 2002. We shall refer to it as “the new offence”. The occupiers of the house were asleep in bed. The appellant stole jewellery, cash and bank cards to a value in excess of £2,400. He was arrested on 8 August 2002. He indicated a plea of guilty in the magistrates' court. He was remanded in custody. He remained in custody between 8 August 2002 and his appearance for sentencing on 29 January 2003, a total of 174 days. He was sentenced to four years' imprisonment for the new offence. He had been a very persistent burglar in the past.[3]At the time of his arrest for the new offence the appellant was out on licence from a sentence totalling four years and nine months' imprisonment for burglary. We refer to that as “the first sentence” in this judgment. In respect of the first sentence the expiry date was 1 January 2004. The appellant was released on licence on 3 July 2002. At the date of the new offence, 7 August 2002, the unexpired portion of the first sentence was one year four months and 24 days.[4]On 27 August 2002 the Home Office revoked the appellant's licence administratively. This had the effect of returning him to prison in respect of the first sentence. After the revocation of the licence he would, had he not then been in custody for other reasons, have been released at the three-quarter point of the first sentence, that is on 25 October 2002, pursuant to section 33(3) of the Criminal Justice Act 1991. The period between the revocation on 27 August and 25 October is 60 days. Thus of the 174 days which the appellant spent in custody between arrest and sentencing, 60 were attributable to his licence having been revoked administratively in respect of the first sentence; 114 days were attributable solely to his being remanded in custody in respect of the new offence.[5]On 29 January 2003 the appellant was sentenced by His Honour Judge Keen. First, he was ordered to return to prison under section 116 of the Powers of Criminal Courts (Sentencing) Act 2000 for one year four months and 24 days, being the period equal to the entire unexpired balance of the first sentence as at the date of the new offence. Secondly, he was sentenced to four years' imprisonment consecutive for the new offence.[6]The appellant applied for leave to appeal against sentence on grounds settled by counsel. Counsel argued that the judge failed to have any sufficient regard to the principle of totality in determining the period of custody which the appellant would have to serve. The single judge refused leave and observed that the appellant was a career burglar; that the offence was committed at night whilst people were in occupation of the premises; and that he had recently been released on licence. The single judge observed that, although the total sentence was severe, it was not manifestly excessive.[7]After refusal of the application for leave to appeal against sentence, the appellant approached the Commission for a review of his sentence. He raised two particular matters. First, he said that he was undergoing a process involving a comprehensive psychological assessment. He submitted material suggesting that he would benefit from therapy. The matter was considered by the Commission who treated his point as being an argument that his sentence was excessive. Having considered the matter, the Commission rejected the appellant's contention, pointing out that the trial judge had considered some materials which related to the possibility of therapy, but considered that the optimism expressed in those materials was ill-founded. The trial judge pointed out that the appellant had offended within a month of being released, despite having been put on a Prolific Offender Project, and pointed out that he had a duty to protect the public.[8]The Commission, therefore, did not refer this matter to the court on the first ground raised by the appellant. However, counsel today has raised the matter again before us on a new basis. Since the Commission considered the matter, a report has been commissioned from and prepared by Dr Naomi Murphy, a Chartered Clinical and Forensic Psychologist. She has prepared a lengthy report in the form of a psychology assessment, dated 23 July 2003. The recommendation in that report is that the appellant would benefit from participation in long-term psychological therapy aimed at addressing childhood trauma and current inter-personal difficulties. The suggestion is that he would benefit from therapy and that therapy could be offered within the prison regime at one of two institutions which are named in the report. The report identifies that the appellant suffers from a very low IQ and identifies a number of personality and other disorders which are said to be at the root of his problems.[9]Based on that material, which counsel points out was not available to the Commission, we are asked to give further consideration to the sentence which was passed. Counsel has submitted that it would enable us to mitigate the sentence and reduce that which was passed by a period of about six to twelve months.[10]We have considered that submission which was made to us, but we reject it. We do not consider that the report which has been placed before us provides a basis for reduction of the sentence which was imposed by the sentencing judge.[11]The second matter arises out of the matters which were considered by the Commission. The appellant suggested to them that he had not been given sufficient credit for time spent in custody prior to sentence, which was a total of 174 days. He submitted to the Commission a Release Date Notification Slip, which the prison authorities had prepared. It indicated that the appellant would be allowed credit for 114 days spent in custody out of the 174, but the remaining 60 days, since they arose from the revocation of the licence would not count towards his sentence.[12]That matter has been considered in detail by the Commission and by this court. Section 67 of the Criminal Justice Act 1967 provides for sentences of imprisonment to be reduced by certain time spent in custody. A consideration of the provisions of section 67(1) and 67(1A) shows that the 60 days attributable to the administrative revocation of the licence do not serve to reduce the four-year sentence for the new offence to which they are not relevant. Neither are they credited automatically against the return to custody in respect of the first sentence as they do not represent a relevant period within the terms of section 67. This has been confirmed with the Sentence Calculation Unit of Her Majesty's Prison Service.[13]In R v Sharkey [2000] 1 Cr App R 409 (which itself is not relevant to the appellant's point), Lord Bingham of Cornhill CJ, in a way which is relevant to this case, said:
“The court will in the ordinary way wish to make allowance for any time which a defendant has spent in custody following administrative recall as the court did when it resentenced the appellant .... unless this is time which will in any event be credited against the sentence imposed for the new offences.”
[14]The case of R v Stocker [2003] 2 Cr App R(S) 54 is on point. Mr Stocker committed offences while on licence from an earlier sentence and had his sentence revoked administratively, with the result that he was recalled to prison. In due course he was sentenced to be returned to prison under section 116 for a period equal to the entire unexpired balance of the earlier sentence as at the date of the new offence, namely 351 days. This was to be followed by a consecutive sentence of imprisonment for the new offences. No allowance was made for the 156 days which he had spent in prison as a result of the revocation of his licence. Mr Stocker contended that allowance should have been made in setting the appropriate term under section 116. Allowing the appeal against sentence, the Court of Appeal referred to Lord Bingham's comments in Sharkey and it took into account the 156 days served on recall, which fell to be doubled by recognising that one day spent in custody following the revocation of a licence was the equivalent of two days return to custody under section 116 in the case of a short-term prisoner. Accordingly the sentence was reduced.[15]In this case the appellant was sentenced to be returned to prison for the maximum period permitted under section 116, being a period equal to the unexpired balance at the date of the new offence (the first sentence), namely one year four months and 24 days. No allowance was made by the judge for the 60 days in custody attributable to the revocation of the appellant's licence. That period of 60 days does not fall to be credited against the four-year sentence for the new offence. Nor can it be credited by the prison authorities against the sentence imposed under section 116. Both the cases of Sharkey and Stocker suggest that it should have been recognised by the sentencing court in setting the period of return to prison. The sentencing judge did not have his attention directed to this question. Nor was it raised when the matter came before the single judge on an application for leave to appeal against sentence.[16]However, we consider that we should take account of Lord Bingham's observations in Sharkey and of the decision in Stocker. We determine that the sentence imposed under section 116 should be reduced. On the basis that the appellant is a long-term prisoner who would be released after serving two-thirds of his sentence, it seems to us that the reduction should be 90 days, being the appropriate grossed-up equivalent of the 60 days. This is an analysis which has not been challenged by Mr Neale, who has attended today on behalf of the Crown. Accordingly, to that extent this appeal is allowed, that is by reducing the period of one year four months and 24 days ordered under section 116 by a period of 90 days.

LORD JUSTICE RIX: The appeal will be allowed to that extent. Mr Bonnell, thank you for your submissions. Mr Neale, thank you very much for your assistance.

Cited in 1 later judgment