Ashes v R.

When imposing imprisonment for public protection on an offender already serving a determinate sentence, the court should ordinarily make the sentences concurrent. It should calculate the minimum term by taking the remaining period to be served under the determinate sentence, allowing for automatic release, adding the appropriate term for the new offence, and applying totality.

Remand custody does not count towards the new sentence where the offender was then serving an existing sentence. An appellate court cannot increase a sentence merely because the lawful calculation would have produced a longer minimum term.

The appellant pleaded guilty at York Crown Court to aggravated burglary committed while on bail. He was already serving 26 months’ imprisonment for dangerous driving and contempt of court. The sentencing judge imposed imprisonment for public protection with a specified period of four years and six months, less 210 days’ remand credit.

The appeal challenged both the imposition of imprisonment for public protection and the specified period. The Court of Appeal also addressed the proper approach to calculating a minimum term where an offender is already serving a determinate sentence, the treatment of a later offence committed by a prisoner subject to imprisonment for public protection, and credit for time spent in custody.

Disposition

1. Appeal dismissed. The imprisonment for public protection order was justified. The statutory assumption of dangerousness was not unreasonable in light of the pre-sentence report and the grave, planned and violent aggravated burglary.

2. Where imprisonment for public protection is imposed on an offender already serving a determinate term, the court should ordinarily impose a concurrent sentence. It should take the remaining period to be served under the earlier determinate sentence, halved to reflect automatic release; add the appropriate term for the new offence, likewise halved; and ensure that the resulting minimum term complies with totality. Consecutive indeterminate sentences should be avoided where possible because they create practical difficulty in identifying release and parole dates.

3. The Court’s discussion of a later offence committed by a prisoner already subject to imprisonment for public protection was provisional. Depending on the circumstances, a further imprisonment for public protection sentence, an adjustment under section 226(1), or a sentence structured on the same occasion with the determinate term first might be available. In a later, separate sentencing exercise, the provisional view was that an appropriate concurrent sentence should be imposed. The point did not arise for decision.

4. Under section 240 of the Criminal Justice Act 2003 and rule 2 of the Remand in Custody (Effect of Concurrent and Consecutive Sentences of Imprisonment) Rules 2005, custody time does not count towards a second sentence if, during that period, the offender was serving an existing sentence. The appellant therefore had credit for only 82 days, rather than 210 days.

5. The judge had incorrectly used the full earlier term rather than its balance. A correct calculation would have produced a minimum term of four years and two and a half months less 82 days, which was longer than the sentence imposed. By section 11(3) of the Criminal Appeal Act 1968, the Court could not increase the sentence. The appeal was therefore dismissed.

• Court of Appeal (Criminal Division): In [2007] EWCA Crim 1848, dismissed the appeal. It upheld the imprisonment for public protection order and could not increase the specified period despite identifying an error which favoured the appellant.
• Crown Court at York: On 1 December 2006, imposed imprisonment for public protection with a specified period of four years and six months less 210 days. The appellant had pleaded guilty to aggravated burglary on 1 November 2006.