Drewett, R. v

A sentencing court must first identify the sentence which the new offence merits. It cannot increase that sentence merely because an administrative recall to custody would otherwise overlap with it. Where the statutory conditions are met, return to custody under Powers of Criminal Courts (Sentencing) Act 2000, section 116 is a separate discretionary mechanism.

In exercising that discretion, the court must consider the offender’s progress on release, the nature and gravity of the new offence, and the totality of the new sentence and return order. It must also avoid double punishment by allowing for time already spent in custody following recall where that time will not be credited against the new sentence.

The appellant pleaded guilty at Oxford Crown Court to possessing crack cocaine with intent to supply. He had two earlier qualifying convictions for Class A drug trafficking and had been recalled to prison following release on licence from concurrent five-year sentences.

The sentencing judge held that the statutory minimum of seven years applied, but imposed eight years and 26 days so that the period of administrative recall would not reduce the effective period served for the new offence. The appellant challenged that approach and also relied on the availability of credit for his late guilty plea.

The central issues were whether the new sentence could be increased to account for recall, and whether the Court of Appeal should instead make a return-to-custody order under section 116 of the Powers of Criminal Courts (Sentencing) Act 2000.

The appeal against sentence was allowed. The sentence of eight years and 26 days was quashed.

1. The judge had correctly concluded that the appellant’s new Class A drug-trafficking offence merited the statutory minimum sentence of seven years. There was no basis in section 110 of the Powers of Criminal Courts (Sentencing) Act 2000 for increasing that sentence because the appellant had already been administratively recalled to custody. The proper course was first to sentence the new offence on its own merits, consistently with R v Taylor (1998) (Ct. App. R. (5) 312).
2. Neither the Crown Court nor the Court of Appeal could make the seven-year sentence consecutive to the administrative recall period: R v Lauren [2001] Ct. App. R (5) 65 and R v Cawthorn [2001] Ct. App. R. (5) 136. However, the Court of Appeal could, under section 11(3) of the Criminal Appeal Act 1968, substitute an order under section 116 of the 2000 Act.
3. Section 116 remained available because the new offence pre-dated 4 April 2005. Administrative recall did not preclude a judicial return-to-custody order. Applying R v Taylor, the court considered the appellant’s limited progress on licence, the gravity and similarity of the new offence, and totality.
4. The court allowed for the 150 days spent in custody following administrative recall. On the approach in R v Sharkey, R v Stocker (2003) 2 Ct App R (s) 53 and R v Teasdale (2004) 1 Ct. App. R. (s) 6, the allowance was 225 days. The statutory maximum return period was therefore 180 days. Allowing a further modest reduction for totality and subsequent progress, the court ordered return to custody for 150 days, to be served first, followed by seven years’ imprisonment for the new offence, less ten days’ remand credit.

• Court of Appeal (Criminal Division) Allowed the appeal against sentence. It quashed the sentence of eight years and 26 days and substituted a 150-day return-to-custody order followed by a seven-year sentence.
• Crown Court at Oxford On 28 July 2005, His Honour Judge Morton Jack imposed eight years and 26 days’ imprisonment following the appellant’s guilty plea to possession of crack cocaine with intent to supply.