England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice Strand London, WC2A 2LL
		13 June 2013

1. MR JUSTICE EDWARDS-STUART: On 26th January 2012 in the Crown Court at Leicester, the applicant pleaded guilty to one count of conspiracy to supply a class A controlled drug, diamorphine. He was sentenced to five years and eight months' imprisonment. The application for permission to appeal against sentence has been referred to this court by the single judge on the ground that when passing sentence the judge made a minor arithmetical error. The single judge said that there was nothing in the other grounds of appeal.

The facts

2. The applicant was arrested in possession of nearly 500 grams of heroin at 7% purity. He was a passenger in a car in which the drugs were being carried when it was stopped by the police. In his late thirties, he is a long term heroin addict. However, this was his third relevant conviction for supplying class A drugs and therefore the court was required to pass a sentence of at least seven years' imprisonment pursuant to section 110 of the Powers of Criminal Courts (Sentencing) Act 2000, unless it would be unjust to do so.

The sentence

3. The judge took the statutory minimum of seven years as the starting point and said that she was going to give the applicant the full credit of 20 per cent, the maximum available in the circumstances.
4. On behalf of the applicant it was submitted that to impose the seven year minimum would result in a substantial difference in sentence between the applicant and one of his co-defendants, who was in the car with him and played a similar role, and that this was a circumstance which would render unjust the application of the section. The judge rejected that submission saying that in her view it was not the type of circumstance which was envisaged by the legislation as justifying the disapplication of the section.
5. The single judge took the view that the judge was right to reject that submission, a conclusion with which we entirely agree.

The appropriate sentence

6. If the judge had applied the 20% reduction to a sentence of seven years, as she clearly intended to do, the result would have been a sentence of five years and 219 days and not the five years and eight months (eight months being 243 days) actually passed.
7. In the ordinary course of events we do not consider that it is appropriate to analyse sentences arithmetically where a judge has taken a starting point by using his or her own judgment and then applying what he or she considers is the appropriate reduction for a guilty plea. It is the bottom line that matters. In R v Martin [2006] EWCA Crim. 1035, Sir Igor Judge, President of the Queen's Bench Division (as he then was), said at paragraph 2:

"The sentencing decision does not represent a mathematical exercise, nor does it result from an arithmetical calculation."

One qualification to this general principle will arise where a defendant is told in terms by the judge that he will receive a particular amount of credit, for example "the full one-third" or "25 per cent" or this is stated unambiguously in the sentencing remarks, in which case, very minor discrepancies aside, which we extend to include the rounding up or down to state the sentence in terms of whole months which judges typically adopt, he may be entitled to have his sentence corrected to reflect the assurance given or statement made by the judge - see for example R v Clough [2010] 1 CrAppR (S) 53, 334 at page 347. In cases where there is a disparity between what has been said in the sentencing remarks and the actual sentence, we would expect counsel to raise the point at the time and it should not be the subject of an appeal without very good reason.

8. However, we consider that the court can and should take a different approach where the two variables are not ones of the judge's choosing but are fixed by statute. In this case the seven year minimum term and the 20% maximum credit for a guilty plea. If the judge is intending to adopt each of those variables then the result is simply a matter of arithmetic. The judge cannot lawfully pass a sentence less than the one produced by the arithmetic and the defendant is entitled to receive a sentence that is no longer than the one produced by the arithmetic.
9. We should add that it is the experience of the Recorder of Bristol, who is sitting as a member of this court, that in the case of fixed minimum sentences, such as three strike burglars, it is not uncommon to see sentences recorded in days so that the necessary precision is achieved.
10. In this case, whilst the difference may be small, in our view the applicant is entitled to the benefit of it.
11. Accordingly on this referral we quash the sentence of five years eight months and substitute a sentence of five years and 219 days. To that extent only this appeal is allowed.