Dixon, R. v

A court may not direct a prison term for offences committed during licence to begin only after the expiry of the recalled earlier sentence, where that direction is prohibited by Criminal Justice Act 2003, section 265(1). Where the former return-to-prison regime remains applicable, the court must first fix the proper sentence for the new offences independently. It must then decide any return to prison by reference to progress on licence, the gravity of the new offending and totality.

Mandatory remand credit applies notwithstanding concurrent detention on other matters, subject to statutory exceptions. Time spent after recall may require a corresponding adjustment to the return period.

The appellant had received a 42-month sentence for theft-related offending and was released on licence. Shortly afterwards he committed further thefts, took a vehicle without consent, drove dangerously and drove while disqualified. He pleaded guilty, was remanded in custody and was later recalled to prison.

At Stafford Crown Court the Recorder imposed three years and six months for the new offences, expressed to begin at the end of the recalled period. The appellant obtained leave to appeal solely on whether that order was lawful under Criminal Justice Act 2003, section 265. The court also had to determine the lawful return period and credit for custody before sentence.

1. The appeal was allowed to the limited extent required to correct the sentence. The Recorder had expressly directed that the three-and-a-half-year sentence for the new offences should begin at the end of the recalled period. That direction contravened section 265(1) of the Criminal Justice Act 2003. The court log could not be treated as recording a different order under section 116 of the Powers of Criminal Courts (Sentencing) Act 2000. The Recorder’s words did not support that interpretation, and he had not addressed the required credit for time on recall. The sentence was therefore quashed.

2. Exercising its power under section 11(3) of the Criminal Appeal Act 1968, the court resentenced the appellant. Applying R v Taylor [1998] 1 Cr.App.R 312, it first determined the proper sentence for the new offences without regard to return to prison. The agreed total of three years and six months remained appropriate. In deciding return under section 116, the court considered the appellant’s negligible progress on licence, the seriousness and custodial character of the new offences, and totality. A maximum return period did not offend totality.

3. Under section 240(3) of the Criminal Justice Act 2003, 22 days from remand to recall had to count against the new sentence. The statutory rules excluded days served after recall. Applying the approach described in R v Stocker [2003] 2 Cr.App.R (S) 54 and R v Teasdale [2004] 1 Cr.App.R (S) 6, 11 days between recall and sentence were equivalent to 22 days’ credit because the requisite custodial period was one half of the sentence.

4. The court directed a return to prison for 583 days from 1 August 2005. Consecutive to it, the appellant was to serve three years and six months for the new offences. It also directed that 22 days count as time served.

• Court of Appeal (Criminal Division) — In [2006] EWCA Crim 1129, allowed the sentencing appeal to the limited extent of quashing the unlawful sentence and imposing a lawful replacement.
• Crown Court at Stafford — On 1 August 2005, the Recorder imposed three years and six months for the new offences, expressed to commence after the recalled period.