Gamble-Beresford, R v

For the calculation of the maximum period of return to prison under section 116 of the Powers of Criminal Courts (Sentencing) Act 2000, an extended sentence under section 85 includes both its custodial term and its extension period. Section 117(5) puts that construction beyond doubt.

The calculation therefore runs to the date on which the aggregate extended sentence would have been served in full. It does not depend on whether the further imprisonable offence was committed before or after expiry of the custodial term. This construction gives effect to the protective purpose of the extension period and the offender's continuing liability to recall during it.

The appellant had received an extended sentence in 2000 comprising a four-year custodial term and a five-year extension period. He was released early in December 2001. After pleading guilty to assault occasioning actual bodily harm committed in October 2002, he was sentenced at the Crown Court at Croydon.

The judge ordered his return to prison for 684 days in respect of the earlier sentence and imposed a consecutive 15-month sentence for the assault. The appeal challenged the lawfulness of the 684-day period. The central issue was whether section 116 of the Powers of Criminal Courts (Sentencing) Act 2000 required the calculation to use only the custodial term or the whole extended sentence.

The appeal was dismissed.

1. Sections 85, 116 and 117 of the Powers of Criminal Courts (Sentencing) Act 2000 had to be construed together. Although the words in section 116(1)(c), read alone, might initially suggest a custodial term, section 117(5) expressly provides that the term of an extended sentence includes its extension period for the purposes of section 116.

2. Section 85(2) describes an extended sentence as a custodial sentence whose term is the aggregate of the custodial term and the extension period. Accordingly, when a released offender commits a further imprisonable offence, the date on which the earlier sentence would have been served in full is the end of that aggregate term. The maximum period of return to prison under section 116 is calculated by reference to that date.

3. This result accords with the purpose of section 85. The extension period prolongs the offender's licence and exposure to recall for public protection and rehabilitation. Treating only the custodial term as relevant would undermine that purpose. It would also produce the untenable result that liability to return to prison differed according to whether the further offence was committed just before or just after expiry of the custodial term, while still within the extension period.

4. The applicable period was therefore approximately 2,249 days, rather than 421 or 422 days. The 684-day return order was within the statutory maximum. Read fairly as a whole, the sentencing judge's remarks were neither unclear nor improperly ordered. The appeal against sentence was dismissed.

• Court of Appeal (Criminal Division): dismissed the appeal against the return-to-prison order and consecutive sentence.
• Crown Court at Croydon: on 18 July 2003, imposed a 684-day return-to-prison order in respect of the earlier extended sentence and a consecutive 15-month sentence for assault occasioning actual bodily harm.