England and Wales Court of Appeal (Criminal Division) Decisions

COURT OF APPEAL (CRIMINAL DIVISION)
On Appeal from Sheffield Crown Court
His Honour Judge Keen QC

		Royal Courts of Justice Strand, London, WC2A 2LL
		27/10/2009

Mr Justice Simon:

1. On 16 October 2008 at Sheffield Crown Court, this Appellant pleaded guilty to possession of cocaine (as an alternative to an offence charged under count 1, possession with intent), and to a charge of acquiring criminal property (count 2).
2. On 27 October he was sentenced to a term of 6 months imprisonment on count 1 and a consecutive term of 3 years imprisonment on count 2. The sentence on count 2 was later varied to a term of 2 years and 9 months, in the light of further information made available to the Court about the value of the criminal property. It follows that the overall term to be served was a term of 3 years and 3 months.
3. He had committed these offences before the expiry of the full term of an earlier sentence of imprisonment; and in these circumstances, he was also ordered to be returned to custody to serve 455 days of the remaining period, pursuant to s.116 of the Powers of Criminal Courts (Sentencing) Act 2000 ('the PCC(S)A 2000')
4. He appeals against sentence with the leave of the Full Court.
5. In order to understand the first ground of appeal it is necessary to consider the circumstances in which the Appellant was ordered to be returned to custody and to serve 455 days of the earlier sentence.
6. On 17 December 2003 at Sheffield Crown Court the Appellant had been sentenced to a term of 7 years imprisonment for possession of heroin with intent to supply. We will refer to this offence as 'the earlier offence'.
7. He was released on licence from this sentence on 22 June 2007, with a sentence expiry date of 22 June 2010. He committed the two index offences on 25 January 2008. Since the earlier offence was committed before the coming into force of the Criminal Justice Act 2003 ('CJA 2003), his release was subject to the early release provision of the Criminal Justice Act 1991 and to the supplementary provisions of the PCC(S)A 2000.
8. Section 116(1) of the PCC(S)A 2000 provided (in short summary) that, (a) where a sentence was passed on an offender on or after 1 October 1992, (b) he was released under the early release provisions in Part II of the CJA 1991, (c) he committed an offence before the date by which he would have served his sentence but for his early release, and (d) was convicted of the new offence, a Court could (under ss.(2)) order his return to prison to complete the sentence; and could direct (under ss.(6)) that the period be served before the sentence for the new offence. In effect, the Court could pass a sentence for the new offence which took effect consecutively to any period of recall ordered.
9. With effect from 4 April 2005, s.116 of the PCC(S)A 2000 was repealed by s.332 of the CJA 2003 Act and Part 7 of Schedule 37. However, the effect of paragraph 29 of schedule 2 to the Commencement No.8 and Transitional and Savings Provisions Order 2005 was that s.116 continued to apply where the earlier sentence was imposed for an offence committed before 4 April 2005, even where the new offence was committed after that date. Paragraph 29 is conveniently set out in 2009 Edition of Archbold at 5-364n, and expressly states that the repeal of s.116 of the 2000 Act,

… is of no effect in relation to a person in a case in which the sentence of imprisonment referred to in s.116(1)(a) of the Powers of Criminal Court (Sentencing) Act 2000 - (a) is imposed in respect of an offence committed before 4 April 2005

10. Mr Longworth (on the Appellant's behalf) accepted this analysis but draws attention to s.265 of the CJA 2003 and to the amendments made to it by s.20(4) of the Criminal Justice and Immigration Act 2008 ('the CJIA 2008'), which came into force on 14 July 2008 by virtue of paragraph 10 of Schedule 1 of the Criminal Justice and Immigration Act 2008 (Commencement No.2 and Transitional and Saving Provision). He submitted that s.20(4) of the CJIA 2008 effectively repealed s.116 PCC(S)A 2000.
11. Section 265(1) of the CJA 2003 provides:

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 for which he has been released under this Chapter.

These provisions reproduce s.84 of the PCC(S)A 2000. It follows that just as s.84 was, they are entirely consistent with the continued operation of s.116 of the PCC(S)A 2000. Section 116(7) explicitly says so.

As a consequence of subsection (6)(a) above, the court shall not be prevented by section 265 of the Criminal Justice Act 2003 (restriction on consecutive sentences for released prisoners) from making any direction authorised by subsection 6(b) above

12. Section 20 of the CJIA 2008 introduced changes to s.265 of the CJA 2003; and s.20(4) of the 2008 Act provided for a new subsection to s.265 of the 2003 Act. The new subsection 265(1A)is in these terms:

Subsection (1) applies to a court sentencing a person to

(a) a term of imprisonment for an offence committed before 4 April 2005

... as it applies to the imposition of any other term of imprisonment

13. Mr Longworth argued that this had the effect of bringing to an end the power under the transitional provisions to order a defendant to return to prison to serve out the remainder of an earlier sentence before serving the sentence for the index offence, which had been reserved in cases where the earlier offence had been committed before 4 April 2005. He relied on paragraph 11 of the Explanatory Notes to the CJIA 2008 which are in the following terms.

... This section also amends the 2003 Act to clarify the position on imposing consecutive sentences on different occasions. If an offender has been released on licence after serving all the required custodial periods then a subsequent sentence may not be ordered to be served consecutively to the sentence from which he has been released.

14. He submitted that the phrase 'a term of imprisonment' in the new s.265(1A) of the CJA 2003 has the same meaning as it does in 116(6)(a) of the PCC(S)A 2000, so that the Judge when he made the recall order was thus imposing a sentence of imprisonment in respect of an offence. Section 265(1A) of the CJA 2003 Act (as amended by CJIA 2008) should be construed as repealing s.116 of the PCC(S)A 2000, so that it has no effect whether the old offence was committed before or after 4 April 2005; or at least, if the power to order recall remained, the power in s.116(6) to make a new sentence consecutive to it was repealed. He further submitted that it would be arbitrary and unfair to interpret s.265(1A) of CJA 2003 as allowing a court to order a defendant to return to prison to serve out the remainder of the sentence only for offences for which the old sentence was passed before 4 April 2005.
15. Attractively as the points were argued we are not persuaded that the intent of the CJIA 2008 was to repeal the transitional provisions which had previously applied or to deprive them of effect in a case such as this.
16. Section 265(1A) of the amended CJA 2003 does not deal with the Court's powers under s.116 of the PCC(S)A 2000. For the reasons explained in [11] above, it is perfectly compatible with the powers given by s.116 both to order recall and to make the new sentence start after the recall period. Section 265 prevents a new sentence from starting after another sentence from which there has been release except where there is an order for recall under section 116.
17. The Explanatory Note to s.20 of the CJIA 2008 needs to be read in the context of its stated intent:

1 ... These explanatory notes ... have been prepared by the Ministry of Justice in order to assist the reader of the Act and to help inform debate on it. They do not form part of the Act and have not been endorsed by Parliament.

2 The notes need to be read in conjunction with the Act. They are not, and are not meant to be, a comprehensive description of the Act. So where a section does not seem to require any explanation or comment, none is given.

18. If the statutory intent was to prevent a term of recall to prison having to be served before a subsequent sentence was imposed in every case, then it would have been easy enough explicitly to express such intent. However it is clear from Schedule 26 of the CJIA 2008 that there was no statutory intent to repeal s.116 so far as it still had transitional effect. Paragraph 40 of Schedule 26 (which deals with minor and consequential amendments) reads,

The Powers of Criminal Courts (Sentencing) Act 2000 has effect subject to the following amendments.

Paragraph 45 reads,

In section 116 (the power to order a return to prison where offence committed during original sentence) –

a) In subsection (1)(b) for 'under Part II of the Criminal Justice Act 1991 (early release prisoners)' substitute 'under an provision of Part 2 of the Criminal Justice Act 1991 (early release of prisoners) other than s.33(1A)'

b) In subsection (7) for 's.84 above' substitute 's.265 of the Criminal Justice Act 2003) restriction on consecutive sentences for released prisoners'.

19. As we have already noted above, subparagraph (b) means that section 116(7) of the PCC(S)A now reads:

As a consequence of subsection 6(a) above, the court shall not be prevented by section 265 of the Criminal Justice Act 2003 from making any direction authorised by subsection 6(b) above

That expressly preserves the power in s 116(6)(b) to order the new sentence to begin after a period of recall which is ordered.

20. However, the effect of subparagraph (a), taken with other provisions of the CJIA 2008, especially s.26, is that s.116 does not now apply to long term (4 years or more) 1991 Act prisoners who are released under the new section 33(1A) at the half-way point in their sentence (bringing them into line with CJA 2003 prisoners). But section 116 does still apply to two types of 1991 Act prisoners, who are outside the new section 33(1A):

i) if one or more of the offences were a specified violent or sexual offence within the meaning of Schedule 15 of the CJA 2003, or

ii) if the offender were released on licence under the provisions of the CJA 1991 (in other words before 9 June 2008 when Schedule 26 Part 2 paragraph 45 of the 2008 Act came into force) (see the Criminal Justice and Immigration Act 2008 (Commencement No.1 and Transitional Provisions Order) [SI 1466 of 2008]

21. It appears that the purpose of s.20 of the CJIA 2008 is at least related to s.26 which effected a change in the early release provisions in relation to those serving long-term sentences to which the CJA 1991 applied. We should add that in our view Archbold 2009 Ed. 3^rd Supplement 5-364r correctly sets out the present ambit of s.116 of the PCC(S)A 2000.
22. So far as the present case is concerned, the Appellant was released from his sentence for an earlier offence on 22 June 2007 under the provisions of the CJA 1991; and in these circumstances it was open to the Court to return the Appellant to prison under s.116 under the amended transitional provisions.
23. We would also add that we do not see any arbitrariness or unfairness in the continued application of s.116 in the confined circumstances in which it may still apply. As Mr Longworth recognised, it may well be that underlying the repeal of s.116 is an assumption that recall from licence will be dealt with by administrative powers. It is to be observed that in this case, where the repeal of s.116 did not apply, the Appellant was not recalled administratively.
24. In considering the other grounds of appeal it is necessary to consider the facts of the two offences for which the Appellant was sentenced on 27 October 2008.
25. On 25 January 2008 the police conducted a search at the Appellant's home and found £12,000 in cash. It was accepted that £2,000 of this sum was the legitimate property of the Appellant's partner and this was returned to her. The police also recovered 56 grams of cocaine which was later found to be of 6% purity. According to the Defence Expert's evidence it had a wholesale value of £800 and a street value of £1,680. In interview the Appellant said that the cocaine was for his own use and that he had purchased it for £1,000. The Prosecution accepted the Defence contention that the cocaine was not crack-cocaine and that its value was consistent with what the Appellant had said (in interview) that he had paid for it. The sum of money which was attributable to the Appellant as criminal property was accepted as £8,000. There was no evidence or admission as to the ultimate source of this sum.
26. The Appellant, who is now aged 32, had 13 previous convictions for 20 offences; the most recent of which was the conviction for possession of heroin with intent (to which we have already referred).
27. A number of points are raised in relation to the sentence, but it is convenient to focus on two: (1) the order that the Appellant serve 455 days of the unexpired sentence imposed for the earlier offence was unexplained and failed to take into account the time he had spent in custody; and (2) the overall sentence was too long in the light of his pleas of guilty, and, looking at the sentence of 2 years and 9 months for money laundering in isolation, the sentence was significantly too long in the light of his plea.
28. So far as the first point is concerned, the expiry date for the earlier offence was 5 September 2010 and the offences for which he was sentenced were committed on 25 January 2008. It follows that the period he was 'at risk' of being returned to prison ran from 25 January 2008 until 5 September 2010 (954 days). In fact, as we have recorded, the period ordered to be served was 455 days. It is unclear why this period was chosen. The Appellant had been on remand from 26 January until 27 October 2008 (a period of 275 days); and the Judge should therefore have made a direction under s.240 of the 2003 Act. He did not do so; and in those circumstances we proceed on the basis that the Appellant was entitled to be credited with 275 days against the sentence imposed.
29. In these circumstances we direct that the Appellant be returned to prison under s.116 of the PCC(S)A 2000 Act for a period 455 days.
30. So far as the second point is concerned, we are not persuaded that there was anything wrong with the sentence of 6 months on count 1 in the light of the Appellant's antecedent history. Nor do we accept that the sentences should be ordered to be served concurrently, since there was nothing from the Appellant (who would have been in the best position to know) to suggest that the money laundering offence was linked to the drugs offence. However we accept that as a matter of totality the overall sentence of 3 years and 3 months, giving full credit for the plea as the Judge said he had done, was too long as a matter of totality. In these circumstances we quash the sentence of 2 years 9 months and substitute a sentence of 2 years on count 2. The overall sentence will therefore be a term of 2 years and 6 months, and we direct that the 275 days spent on remand should count against that sentence.
31. To this extent only, the appeal is allowed.