England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice Strand London, WC2
		24th June 2004

1. MR JUSTICE GROSS: There is only one point in this appeal and that concerns the application of section 116 of the Powers of Criminal Courts (Sentencing) Act 2000 ("the Act") in the context of an extended sentence passed under section 85 of the Act.
2. In so far as relevant, sections 85, 116 and 117 of the read as follows:

Section 85:

"(1) This section applies where a court-

(a) proposes to impose a custodial sentence for a sexual or violent offence committed on or after 30th September 1998; and.

(b) considers that the period (if any) for which the offender would, apart from this section, be subject to a licence would not be adequate for the purpose of preventing the commission by him of further offences and securing his rehabilitation.

(2) Subject to subsections (3) to (5) below, the court may pass on the offender an extended sentence, that is to say, a custodial sentence the term of which is equal to the aggregate of-

(a) the term of the custodial sentence that the court would have imposed if it had passed a custodial sentence otherwise than under this section ('the custodial term'); and.

(b) a further period ('the extension period') for which the offender is to be subject to a licence and which is of such length as the court considers necessary for the purpose mentioned in subsection (1) above."

Section 116:

"(1) This section applies to a person if-

(a) he has been serving a determinate sentence of imprisonment which he began serving on or after 1st October 1992;

(b) he is released under Part II of the Criminal Justice Act 1991 (early release of prisoners);

(c) before the date on which he would (but for his release) have served his sentence in full, he commits an offence punishable with imprisonment ('the new offence'); and.

(d) whether before or after that date, he is convicted of the new offence.

(2) Subject to subsection (3) below, the court by or before which a person to whom this section applies is convicted of the new offence may, whether or not it passes any other sentence on him to be returned to prison for the whole or any part of the period which-

(a) begins with the date of the order; and.

(b) is equal in length to the period between the date on which the new offence was committed and the date mentioned in subsection (1(c) above."

Section 117:

"(3) Where a person has been sentenced to two or more terms of imprisonment which are wholly or partly concurrent and do not fall to be treated as a single term, the date mentioned in section 116(1)(c) above shall be taken to be that on which he would (but for his release) have served each of the sentences in full.

(5) Section 116(1) and subsection (3) above shall each have effect as if the term of an extended sentence (within the meaning of section 85 above) included the extension period (within the meaning of that section)."

3. For present purposes, put simply, section 116 of the Act provides that where the prisoner is released early and commits a further offence punishable by imprisonment before the date when, but for his release, his first sentence would have expired, he can be returned to prison for up to but no more than the period between (a) the date of the further offence and (b) the date where his first sentence would have expired.
4. In a nutshell, it is said by Miss Krause, on behalf of the appellant -- who committed a new offence before even the custodial term of an extended sentence had expired -- that the judge has erred in calculating the period, so that the sentence passed is unlawful and must be reduced.
5. The real question, however, as we see it, is whether, in calculating the period under section 116 of the Act in the context of an extended sentence passed under section 85 of the Act (i) only the custodial term is to be taken into account or (ii) both the custodial term and the extension period are to be taken into account. If the former is correct, then, as will become apparent, the sentence passed is unlawful. If the latter, then no complaint along these lines can be made against sentence passed by the judge.
6. Against this background the relevant facts can be shortly summarised. On 19th May 2003 the appellant pleaded guilty in the Crown Court at Croydon and on 18th July 2003 he was sentenced by His Honour Judge Joseph, in respect of an offence of assault occasioning actual bodily harm committed on 22nd October 2002.
7. On 7th April 2000, before the same court, the appellant had been sentenced to a custodial term of 4 years' imprisonment and an extension period of 5 years, that is a 9 years aggregate extended sentence in respect of two counts of burglary, six counts of indecent assault and a count of taking an indecent photograph or pseudo photograph of a child.
8. The appellant had been remanded in custody from 18th December 1999. In the event, on 17th December 2001, the appellant had been released from prison early. It follows that the 2000 sentence had on any view not been served in full at the time when the October 2002 offence was committed.
9. As a matter of arithmetic, if only the custodial term is relevant, the maximum period for which the appellant could be returned to prison was that between (a) 22nd October 2002 and (b) 16th December 2003, when the custodial term of the 2000 sentence would have expired. That period is accordingly equal to 421 or 422 days. The precise number of days does not matter.
10. Equally, as a matter of arithmetic, if both the custodial term and the extension period are to be taken into account, then the period would be of the order of 2249 days, as has been helpfully calculated by the Prison Service in response to a question posed by this Court. For the Prison Service's assistance with regard to such calculations, we are grateful.
11. When sentencing, the judge first returned the appellant to prison in respect of the 2000 matter; for this breach of licence, he sentenced the appellant to 684 days imprisonment. In respect of the 2002 assault he sentenced the appellant to 15 months imprisonment consecutive. The total sentence was accordingly 15 months plus 684 days imprisonment. From that sentence the appellant appealed by leave of the Single Judge.
12. The sole ground of appeal at least until this morning's hearing was that the judge miscalculated the maximum period. Instead of the 684 days, Miss Krause has submitted that the period should have been 421 or 422. There was a further point taken as to the deduction to be made for the time spent in custody. That really is by the by but, in the upshot, Miss Krause's submission is that the maximum sentence would be 368 days rather than 684.
13. As the facts disclose and as already foreshadowed, Miss Krause's submission would be correct if, but only if, only the custodial term of the extended sentence is to be taken into account. If, however, both the custodial term and the extension period come into the calculation, then the criticism of the judge's sentence is not well-founded.
14. We acknowledge that if section 116(1)(c) of the Act is considered in isolation, then the wording "served his sentence in full" may appear at first blush to contemplate only a custodial term. That, however, is to ignore both the statutory provisions contained in section 117(5) of the Act and moreover the terms and context of section 85 and the learning already available on that section (see generally Archbold 2004 paragraph 5 - 226).
15. In this regard, first, section 85(2) refers to an extended sentence as a custodial sentence, the term of which is equal to the aggregate of the custodial term and the extension period. Secondly, this Court has previously warned that when imposing an extended sentence, the sentencer should bear in mind that the offender might ultimately serve the whole or part of the extension period in the custody. Thirdly, the offender is liable to recall to custody at any time before the end of the extension period.
16. In this last regard Miss Krause drew our attention to the decision of R (Sim) v The Parole Board [2003] EWCA CIV 1845 [2004] 2 WLR 1170. That decision is, of course, of the first importance on the question of administrative recall but does not assist us further in the context of the present appeal.
17. In our judgment, on a proper consideration of sections 85, 116 and 117 of the Act, read together as they must be, both the custodial term and the extension period under section 85 must be taken into account when calculating the period under section 116. To be fair to Miss Krause, once the statutory provisions of section 117 were pointed out to her, she acknowledged readily the force thereof.
18. This construction, which we favour, accords with the purpose of section 85, which is to enable a sentencing court to extend a normally applicable licence period for a qualifying violent or sexual offence. It does not follow that the aggregate sentence is any less a custodial sentence than a simple determinate sentence. Indeed the purpose of extending the normally applicable licence period (and so to keep the offender at risk of recall for a considerable period) would be undermined unless at least for present purposes the whole of the extended sentence was treated as a custodial sentence.
19. Nor could it be right that the period for which a prisoner is returned to prison differed depending on whether the new offence was committed before or after the custodial term would have expired. What if, for example, in the present case the new offence had been committed after the expiry of the custodial term but within the extension period? On those facts it cannot be that the appellant would not have been liable to return to prison at all. If that be right, then it can make no difference that that new offence was committed before even the expiry of the custodial term.
20. In any event, the matter is put beyond doubt by the terms of section 117(5), which make it plain that, for these purposes, it is the entirety or the aggregate of the extended sentence which matters when calculating the period. Accordingly, the period in the present case was not 421 or 422 days before deduction for time spent in custody, but something of the order of 2,249 days.
21. In the circumstances, no criticism can be made of the sentence passed along the lines developed in the grounds of appeal.
22. Orally today and faced with the difficulties which Miss Krause now encountered under the statute, she sought to develop other criticisms of the sentence passed; namely, that the judge had put matters in the wrong order, his wording had been vague and there was doubt as to what he had in mind. Fairly read as a whole, the learned judge's sentencing remarks are, in our judgment, plain and no criticism can be made of the sentence passed on these grounds either.
23. For the reasons given, this appeal must be dismissed.