Fontella, R v [2010] EWCA Crim 1990

Case No 201002119 A5[2010] EWCA Crim 1990
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Venue Royal Courts of Justice
Strand
London, WC2A 2LL
FRIDAY, 23RD JULY 2010
B e f o r e:
MR JUSTICE OWEN
&
MR JUSTICE HOLROYDE
Between
R E G I N ACrownv
Between
DARREN ANTHONY FONTELLA
Computer Aided Transcript of the Stenograph Notes ofWordWave International LimitedA Merrill Communications Company165 Fleet Street London EC4A 2DYTel No: 020 7404 1400 Fax No: 020 7404 1424(Official Shorthand Writers to the Court)
J U D G M E N TDate 2010-07-23
[1]MR JUSTICE HOLROYDE: On 14 July 2009 in the Crown Court at Cardiff this appellant Darren Fontella was sentenced to a term of 4 and a half years' imprisonment for a serious offence of aggravated burglary. No appeal is or could be brought against that sentence. The case comes before this court today because of an issue as to the period of remand which should be credited against that sentence.[2]Having pronounced his sentence, the learned judge asked defence counsel whether there was any time on remand to be taken into account. Counsel referred to a period during which the appellant had been remanded in custody prior to being granted bail, but indicated that he did not know the exact number of days. Neither counsel nor the court had any indication from the prison authorities of that number of days. In those circumstances, the learned judge said:
"What I will say is that whatever the number of days is to count towards his sentence will count towards his sentence unless it has been counted in some other way and I would ask the prison to supply the necessary number of days as quickly as possible but such days will count towards his sentence unless they have been counted in some other way."
[3]The court record noted that the court had directed, pursuant to section 240 of the Criminal Justice Act 2003 "that all time spent on remand to count towards sentence".[4]The prison authorities subsequently confirmed that the number of days which the appellant had spent on remand in custody was 15.[5]Unfortunately, what defence counsel failed to bring to the attention of the learned judge was the fact that the appellant had not only spent those 15 days remanded in custody, but had also spent 195 days remanded on bail subject to conditions which included both a "qualifying curfew condition" and an "electronic monitoring condition" within the meaning of section 240A(12) of the 2003 Act. By virtue of section 240 A(2) and (4) the court was required, unless of the opinion that it would be just in all the circumstances not to do so, to direct that the credit period for that remand on bail "is to count as time served by the offender as part of the sentence." The effect on sentence of 240A(3) is that the credit period in this case is one of 98 days. There is nothing in the circumstances of this case which would make it just not to give the appropriate direction. No doubt the learned judge would have given that direction if the matter had been drawn to his attention.[6]Defence counsel has very properly acknowledged in the written submissions that the responsibility for the error lies with him. He submits, correctly, that the appellant should not be penalised for that error. He has also explained, in terms which this court accepts, how it came about that the error was not detected and brought to the attention of the Crown Court in time for that court to correct it by making use of its power under section 155 of the Powers of Criminal Courts (Sentencing) Act 2000.[7]In R v Johnson 2009 EWCA Crim 468 this court set out a formula to be used by sentencing judges with a view to avoiding the expense of an appeal to this court when an error of this nature occurs. The formula is conveniently set out in paragraph 5-368g of the current 2010 edition of Archbold. It is unfortunate that that guidance was not followed in this case.[8]In the result this appeal must be allowed and the appellant must be given credit not only for his 15 days on remand in custody prior to sentence but also for the credit period of 98 days in respect of his period of remand on bail subject to qualifying conditions, a total of 113 days.[9]It being now many months since sentence was passed, we are as confident as we can be that those figures are correct, but it nevertheless seems to us appropriate that we too should use the formula suggested in R v Johnson. We accordingly direct that the appellant will receive full credit for the full period of time spent in custody on remand and half the time spent under his curfew if the curfew qualified under the provisions of section 240A of the 2003 Act. On the information before us the total period is 113 days. If this period is mistaken, this court will order an amendment of the record for the correct period to be recorded. To that extent this appeal is allowed.