Jesson, R. v

Where the offence that resulted in the original custodial sentence was committed before 4 April 2005, section 116 of the Powers of Criminal Courts (Sentencing) Act 2000 remained available despite its repeal. It permitted a court to order an offender, already on administrative recall, to return to custody for the balance of the earlier sentence, subject to credit for time served.

The court may then impose an appropriate consecutive sentence for the later offence. It should not seek to achieve that result by imposing an artificially extended concurrent sentence. For later offending, the statutory regime may instead prevent a consecutive custodial sentence.

The appellant pleaded guilty before magistrates to possessing criminal property and was committed to the Crown Court for sentence under section 3 of the Powers of Criminal Courts (Sentencing) Act 2000. The property comprised goods stolen during a domestic burglary, which the appellant admitted knowing to be stolen and intended to sell.

He was serving the remainder of an earlier robbery sentence after administrative recall. The Crown Court considered that the new offence warranted an additional 12 months’ custody. Believing that a consecutive sentence could not be imposed, it imposed a concurrent sentence of three years and 357 days, calibrated to have that effect.

The appeal concerned both the severity of that intended additional period and the lawful means of imposing it.

1. Appeal allowed. The Court of Appeal upheld the sentencing judge’s assessment that the offending justified a substantial additional custodial period. The appellant’s extensive record, his offending while on licence for robbery, the close connection with the domestic burglary, and the value and sentimental importance of the stolen property were relevant sentencing factors. The intended additional 12 months was not manifestly excessive: see Webbe and others [2002] 1 Cr.App.R (S) 22.
2. The sentencing mechanism was erroneous. Section 84 of the Powers of Criminal Courts (Sentencing) Act 2000 prevented a sentence being made consecutive to a period of administrative recall. However, section 116 remained applicable because the earlier robbery offence had been committed before 4 April 2005. It empowered the court to order the appellant’s return to custody for the balance of that earlier sentence, with allowance for time already served on recall: see Howell [2006] EWCA Crim 860 and Stocker [2003] EWCA Crim. 121.
3. The court quashed the concurrent sentence. It substituted an order under section 116 for return to custody for 251 days, followed by a consecutive sentence of two years’ imprisonment for the new offence.
4. The court added that this solution was confined to cases in which the earlier offence pre-dated 4 April 2005. In later cases involving an original sentence exceeding 12 months, the return-to-custody power had been abolished and section 265 of the Criminal Justice Act 2003 prohibited a consecutive custodial sentence following release under Part IV of that Act.

• Court of Appeal (Criminal Division): Allowed the appeal against sentence and substituted an order under section 116 of the Powers of Criminal Courts (Sentencing) Act 2000, together with a consecutive sentence: [2007] EWCA Crim 1399.
• Crown Court at Leicester: Imposed a concurrent sentence of three years and 357 days’ imprisonment after the appellant’s committal for sentence from the magistrates’ court.