Bignell, R. v

When sentencing an offender under Powers of Criminal Courts (Sentencing) Act 2000, section 116, the court should first fix the proper sentence for the new offence without regard to return to custody. It should then decide whether to order return, its length, and whether it is to precede the new sentence or run concurrently with it.

The court must consider totality. It should also allow for time already spent in custody following an administrative recall when fixing the period to be served.

The appellant pleaded guilty to assault occasioning actual bodily harm after striking a motorist who had intervened during a violent argument. He was committed by the justices to Aylesbury Crown Court for sentence.

The Crown Court imposed 12 months’ imprisonment for the assault and ordered the appellant to return to custody for 635 days under section 116 of the Powers of Criminal Courts (Sentencing) Act 2000, with the assault sentence to follow. He appealed with leave of the single judge on the ground that the overall sentence might offend the principle of totality.

1. Appeal allowed to a limited extent. The overall sentence, amounting to about three years, was manifestly excessive. The period of return to custody was reduced to 12 months. It was to be served before the 12-month sentence for assault, producing a total of about 24 months.

2. Under section 116 of the Powers of Criminal Courts (Sentencing) Act 2000, the sentencing exercise has two stages. The judge must first determine the proper sentence for the new offence without allowing for a possible return to custody. The judge must then decide whether a return order should be made, the period to be served, and whether it should precede the new sentence or run concurrently with it.

3. The period ordered under section 116 must not be made consecutive to a new custodial sentence. The judge must consider the offender’s progress since release, the nature and gravity of the new offence, and totality when deciding both the period of return and its relationship with the new sentence.

4. Time already spent in custody after administrative recall must be allowed for when fixing the period to be served under section 116. The court was not satisfied that the sentencing judge had failed to make that allowance here. However, he had not fully followed the required sentencing procedure and the resulting total was excessive.

• Court of Appeal (Criminal Division): Allowed the sentence appeal to the extent of reducing the period of return to custody to 12 months.
• Aylesbury Crown Court: Sentenced the appellant to 12 months’ imprisonment for assault occasioning actual bodily harm and ordered a return to custody of 635 days under section 116 of the Powers of Criminal Courts (Sentencing) Act 2000.