England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice Strand London, WC2A 2LL
		22nd September 2009

1. LORD JUSTICE DYSON: On 22nd September 2006 at Worcester Crown Court, this applicant was convicted of one count of having an offensive weapon. On 20th November 2006 he was sentenced to 3 years' imprisonment to run consecutively to a period of imprisonment imposed in respect of a previous offence. The judge ordered that 24 days in custody count towards sentence under section 240 of the Criminal Justice Act 2003. His applications for an extension of time and leave to appeal against sentence have been referred to the Full Court by the Registrar.
2. The facts can be briefly stated. On the evening of 18th August 2005 the applicant was at the Chicago Rock cafe Redditch. During the course of the evening he had an altercation with the doorman, a Mr Harris, who had refused to admit some of his friends. Subsequently Mr Harris observed the applicant barge into a female member of staff. Mr Harris approached him. The applicant adopted an aggressive stance. He said: "Just wait there, I'm going to get my boys." He returned accompanied by another man. He walked inside the premises, picked up a glass or bottle and smashed it on the table and shouted "come on then" and lunged at Mr Harris.
3. As we have said, the judge ordered the sentence that he passed to run consecutively to the previous sentence. That sentence was passed on 27th November 2000, when the applicant was sentenced to an extended sentence under section 58 of the Crime and Disorder Act 1998 comprising a custodial term of 5 years' imprisonment and a licence period of 5 years. The licence expiry date was 17th September 2009. The sentence expiry date was 1st January 2011.
4. On 14th July 2003 he was released on licence. On 18th August 2005 he committed the instant offence. On 22nd September 2006 he was remanded in custody. On 16th October 2006 his licence was revoked.
5. It is clear that the judge did not have the power to order the sentence that he passed on 20th November 2006 to run consecutively to the sentence that had been passed on 27th November 2000. That is because the applicant had been released on licence on 14th July 2003.
6. Section 265(1) of the Criminal Justice Act 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 from which he has been released ..."

This court, however, has the power to restructure the sentence, provided that the result of the restructuring is not to deal with the applicant more severely than he was dealt with by the court below (see section 11(3) of the Criminal Appeals Act 1968.) Section 116 of the Powers of Criminal Court (Sentencing) Act 2000 has not been repealed in relation to sentences that were imposed for offences committed before 4th April 2005. The judge could therefore have ordered the applicant's return to prison under section 116 to be served either before or concurrently with the sentence for the index offence for a period no greater than the period between the date of the commission of the index offence, 18th August 2005, and the sentence expiry date of the earlier offence, 1st January 2011: that is to say, a period of 1962 days. The sentence period for the earlier offence includes the extension period (see section 117(5) of the 2000 Act). From this period of 1962 days the judge would have had to give credit for twice the period spent on administrative recall, that is to say 34 days x 2, being the period between 16th October 2006, when the licence was revoked, and 20th November 2006, the date of sentence: a total deduction therefore of 68 days. The result is that the maximum period for which the judge could have made an order under section 116 was 1894 days. But it is necessary to have regard to section 11(3). It is agreed between counsel for the applicant and counsel for the Crown that the maximum period that this court could order the return to prison of the applicant is a period of 1030 days.

7. We have to decide what period, in all the circumstances, justice requires that this court should order the applicant to be returned to prison to serve, if any period at all. Having regard to the seriousness of the offending, it seems to us that a period of 365 days is the period that he should be ordered to return to prison to serve under section 116 of the 2000 Act. That period, of course, is now a matter of history but, as a matter of form, the 3 years sentence, which the applicant does not seek to challenge, should be served after the expiry of 365 day period, to which we have referred.
8. Accordingly, we grant the appropriate extension of time and leave to appeal to the applicant. We allow the appeal to the extent indicated. The credit of 24 days spent on remand allowed by the judge in respect of the sentence for the index offence will remain. To that extent the appeal is allowed.