Dixon, R. v [2006] EWCA Crim 1129

Case No 2005/4697/A4[2006] EWCA Crim 1129
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Venue Royal Courts of JusticeDate Wednesday, 8 th March 2006
Strand
London, WC2
B E F O R E:
LORD JUSTICE DYSON
MR JUSTICE GRIGSON
MR JUSTICE WALKER
Between
R E G I N ACrown-v-
Between
PETER DIXON
Computer Aided Transcript of the Stenograph Notes ofSmith Bernal Wordwave Limited190 Fleet Street London EC4A 2AGTel No: 020 7404 1400 Fax No: 020 7831 8838(Official Shorthand Writers to the Court)
MR W BEALBY appeared for APPELLANTMR G SAMUEL appeared for CROWN
J U D G M E N T
[1]MR JUSTICE WALKER: This appeal concerns the sentencing of offenders where an initial sentence of imprisonment is imposed, the offender is released on licence under Part II of the Criminal Justice Act 1991 and during the remaining period of the initial sentence the offender commits a new offence punishable with imprisonment. In the present case both initially and subsequently the sentencing court had to deal with a series of offences and there is the additional feature that prior to sentencing for the new offences the offender was recalled to prison under section 254 of the Criminal Justice Act 2003.[2]The offences which led to the new sentence, and which we shall call "the new offences", were depressingly similar to those which led to the initial sentence (and we which shall call "the initial offences", although they were by no means the first occasion on which the appellant had offended). In both the initial and the new offences personal property was stolen, on occasions by breaking into cars, and a vehicle was taken, all in a manner bound to cause distress to those involved. The motive was to finance the appellant's drug-taking. The chronology was this:(i) On 28th November 2003 the appellant was sentenced at Birmingham Crown Court to a period of imprisonment of 42 months, which, after credit for time in custody on remand, would end on 11th February 2007.(ii) On 13th May 2005 the appellant was released on licence under section 33(1)(b) of the Criminal Justice Act 1991 with supervision to expire on 29th March 2006.(iii) On 15th June 2005 the appellant started on a series of new offences of theft. At this stage there were 605 days of the initial sentence remaining. The following day he made matters worse by taking a car without consent, driving it while disqualified and driving it dangerously.(iv) On 28th June 2005 the appellant was arrested in relation to the new offences.(v) On 30th June 2005 the appellant appeared in the Magistrates Court and pleaded guilty to the new offences. He was committed for sentence to the Crown Court and was thereafter held in custody, bail having been refused.(vi) On 22nd July 2005 the appellant was recalled to prison under section 254 of the Criminal Justice Act 2003.(vii) On 1st August 2005 the appellant was sentenced in the Crown Court at Stafford by Mr Recorder Freeman. The court record states that for an offence of dangerous driving the appellant was sentenced to six months' imprisonment consecutive, with a disqualification from driving for five years and until an extended driving test was passed. For an offence of theft a sentence of three years' imprisonment was passed and this was described as "consecutive to recall". For seven other offences of theft the sentence was three years' imprisonment concurrent. For an offence of driving whilst disqualified the sentence was two months' imprisonment concurrent, with the appellant's driving licence to be endorsed. For an offence of taking a motor vehicle without consent, the sentence was two months' imprisonment concurrent. For breach of licence in relation to the initial sentence, as regards the first initial offence of theft a sentence of 605 days' imprisonment is noted and in relation to each of the remaining initial offences a further sentence of 605 days' imprisonment concurrent is recorded. The total sentence passed on 1st August 2005 is described in the court log as being a total sentence of imprisonment for 42 months 605 days.[3]Leave to appeal was sought on the ground that the sentence was manifestly excessive. On 9th November 2005 the single judge indicated that in that regard he would be minded to refuse leave, given the nature of the offences and their commission so shortly after release. He was however troubled by the sentence of 42 months being made consecutive to the period of recall and invited further submissions. This led to an advice from Mr Bealby, who appeared for the appellant on 1st August 2005 and assisted us with oral submissions today, asserting that the sentence passed was in breach of section 265(1) of the Criminal Justice Act 2003. This subsection, which came into force as regards sentences of imprisonment of 12 months or more on 4th April 2005, states: "A court sentencing a person to a term of imprisonment may not order or direct that the term is to commence on the expiry of any other sentence of imprisonment from which he has been released early under this Chapter." [In the case of the appellant, by paragraph 23 of the Criminal Justice Act 2003 (Commencement No 8 and Transitional and Saving Provisions) Order 2005 (SI 2005 No.950) release on licence under that chapter includes release on licence under Part 2 of the Criminal Justice Act 1991].[4]On 2nd December 2005 the single judge reconsidered the matter. He granted leave to appeal, but only so that the question of the sentence being made consecutive to the period of recall could be considered by the full court. On other aspects leave to appeal was refused and there is no application to renew.[5]When the case came on for sentence on 1st August 2005, Mr Samuel opened the matter on behalf of the prosecution. He appears before us today in the same capacity and has given us valuable assistance. The Recorder asked whether the recall to prison had been for a specific period and noted that as he understood it he would be able to make his own order which would take precedence over the recall. Information was provided from the appellant that he had received a recall letter which specified February 2007 as the end of the period. There was then some discussion with a suggestion by the Recorder that "February 2007 would...be the full 605 days from when the order was made." Although this was not expressly stated in the course of the discussion in court, a recall until February 2007 would not involve the appellant serving 605 days from the date of the Recorder's order. A period of 605 days from the date of his order was, however, the maximum period for which the Recorder could make a direction under section 116 of the Powers of Criminal Courts (Sentencing) Act 2000 that the appellant be returned to prison. That was because 605 days would be a period equal in length to the period between the date on which the earliest new offence was committed and the date on which he would, but for his release, have served his initial sentence in full.[6]When passing sentence the Recorder said that on the offences of stealing from cars, after allowing for a plea of guilty, the sentence would be three years. For the offence of dangerous driving there would be an additional sentence of six months. Concurrently with that would be sentences of two months each for taking a vehicle without consent and driving while disqualified. He continued:
"All those sentences taken together add up to three-and-a-half years. Those will start at the end of the period you have been recalled to serve, with which I see no reason to interfere."
[7]The statement by the Recorder that the three-and-a-half years would start at the end of the period of recall was inconsistent with statute. As noted by Mr Bealby in his advice, it contravened section 265 of the Criminal Justice Act 2003.[8]Mr Samuel, however, points out that section 265 of the 2003 Act re-enacts, so far as material, section 102 of the Crime and Disorder Act 1998. It was held by this court in R v Lowe and Leask [1999] 2 Cr.App.R (S) 316 and R v Laurent [2001] 1 Cr.App.R (S) 224, that this provision did not prevent the court, when sentencing for new offences, from imposing a sentence for a breach of licence which is to be served before the sentence for the new offences. That is what the court clerk believed the Recorder to have done, as witness the entry at the end of the court log. There were grounds for that belief, said Mr Samuel, in the following exchange which took place at the conclusion of the sentencing remarks:
"MR BEALBY: May I be clear that he is to serve three-and-a-half years from the February, the new release date in February, 07? MR RECORDER FREEMAN: That is right, which will obviously be subject to the usual reductions."
[9]Mr Samuel points out that the recall to prison would not be subject to the usual reductions, while an order under section 116 of the 2000 Act would be subject to such reductions. It follows, submits Mr Samuel, that the Recorder had intended to make such an order.[10]On behalf of the appellant Mr Bealby says this is too slender a basis to infer any intention to make an order under section 116. Under section 116(2)(a) the period of return was to begin with the date of the Recorder's order. A period of 605 days from 1st August did not expire until 29th March 2007. Moreover, when determining the period for which an offender is returned to prison under section 116 a sentencer must consider whether credit should be given for time spent on recall and the Recorder had not done so. We agree with Mr Bealby's submissions in this regard. The words used by the sentencing judge did not entitle the court clerk to interpret him as doing anything other than direct that the sentence of three-and-a-half years for the new offences would start at the end of the period of recall. The sentence as recorded in the court log must therefore be quashed. It is impossible to put in its place the sentence envisaged by the Recorder, for that would contravene section 265 of the 2003 Act.[11]In those circumstances, it falls to this court under section 11(3) of the Criminal Appeal Act 1968 to pass such sentence or make such order as is appropriate for the case and as the court below had power to pass or make. As section 116 of the 2000 Act continues to apply where offenders are released from sentences of imprisonment in respect of an offence committed before 4th April 2005 or for imprisonment of a term of less than 12 months, it is appropriate to recall the principles set out by this court in the case of R v Taylor, reported with the case of R v Secretary of State for the Home Department ex parte Probyn at [1998] 1 Cr.App.R 312. In that case the court was concerned with section 40 of the 1991 Act, but the material provisions are identical to those found in section 116 of the 2000 Act. By section 116(6)(c) the court is to disregard the power to order return to prison when determining the appropriate length of the sentence for the new offences. Accordingly, the sentencing tribunal must first decide what is the appropriate sentence for the new offending so that it receives the sentence which it merits independently of any question of an order for return to prison. In the present case there is no dispute that the total of three years six months for the new offences should stand. In considering whether an order for return should be made, it will usually be appropriate to have regard to the nature and extent of any progress made by the defendant since release on licence and the nature and gravity of the new offences and whether they call for a custodial sentence. In the present case, there was little (if any) progress made by the appellant since release. The new offences were serious and represented a worrying continuation of a previous pattern and plainly called for a custodial sentence. All those matters pointed to an order for return to prison for the full period from the date of the first new offence to the end of the initial term. However, before making such an order it is necessary to have regard to totality, both in determining whether a return to prison should be ordered and whether such period of return should be served before or concurrently with the new offence and in determining, particularly if it is to be served before the new offence, how long the return term should be.[12]Mr Bealby submits that a return to serve the full 605 days would, when taken in conjunction with the period of three-and-a-half years, offend the principle of totality. When considering this submission we pay particular regard to the seriousness of the offences and the almost immediate relapse of the appellant into his old ways. In our view the cumulative culpability of this appellant in relation to the new offences and his breach of licence as regards the initial sentence is such that a return to prison for the maximum period does not breach the principle of totality.[13]Under section 240(3) of the Criminal Justice Act 2003 it is necessary to make a direction as to the number of days for which the appellant was remanded in custody in connection with the new offences or any related offence. Subject to exceptions, an obligation is placed on the court to direct that this number of days is to count as time served by him as part of his sentence for those offences. By subsection (2) it is immaterial for that purpose whether the offender has also been detained in connection with other matters.[14]A direction of this kind does not appear to have been made on 1st August 2005. The appellant was remanded in custody in connection with the new offences on 30th June 2005. Accordingly a direction under section 240 is required, subject to consideration of relevant exceptions. Under section 240(4)(b) an exception arises if and to the extent that it is in the opinion of the court just in all the circumstances not to give a direction. We do not hold that opinion. However, under section 240(4)(a) rules made by the Secretary of State may provide for exceptions. By the Remand in Custody (Effect of Concurrent and Consecutive Sentences of Imprisonment) Rules 2005 (SI 2005 No.2054), section 240(3) does not apply in relation to a day for which an offender was serving a sentence of imprisonment (and was not on licence). It follows that the period to be specified under section 240(3) in the present case expired on 22nd July 2005 when the appellant was recalled. There will therefore be a direction that 22 days shall count against the appellant's sentence.[15]As regards the remaining period of 11 days from the time of the appellant's recall to prison to the date of sentence on 1st August 2005, credit should be given by the sentencing court, as described by this court in R v Stocker [2003] 2 Cr.App.R (S) 54 and R v Teasdale [2004] 1 Cr.App.R (S) 6. The appellant will not be a short-term prisoner as he is now sentenced under the Criminal Justice Act 2003, but the corollary is that the requisite custodial period under section 244(3) will be one-half of his sentence. It follows that the period od 11 days served following recall is the equivalent of a sentence of 22 days. We will accordingly deduct 22 days from the 605 days maximum, so that the period which the appellant is directed to serve under section 116 of the 2000 Act will be 583 days.[16]Accordingly, the sentence passed on 1st August 2005 is quashed. In its place, and taking effect from 1st August 2005, the sentence will be as follows. First, the appellant is directed to serve under section 116 of the 2000 Act a period of 583 days. Second, consecutive to that the sentences imposed by the Recorder on the new offences are to be served by the appellant, a total of three years and six months. In relation to the sentence that we have passed today, as regards the period from 30th June 2005 to 22nd July 2005, we make a direction under section 240(3) of the 2003 Act that a period of 22 days is to count as time served by the appellant as part of this sentence. To that extent this appeal is allowed.[17]MR BEALBY: My Lord, might I request that a copy of the judgment be sent to my chambers? There are a number of cases, quite unrelated to this, which would be affected by it.

LORD JUSTICE DYSON: I think we will ensure that it is posted on the Bailii website so that it will be accessible to the public at large. I think that is a sufficient way of publicising it.

[19]MR BEALBY: My Lord, thank you.