Kiely, R. v

A court may not direct a custodial term to begin only when an earlier sentence, from which the offender was released early, would have expired. Such a direction is prohibited by section 265 of the Criminal Justice Act 2003. Where that error makes a sentence unlawful, the appellate court must re-sentence. It may retain the appropriate custodial term while removing the unlawful direction and preserving any lawful credit for time spent on remand.

The applicant pleaded guilty at Preston Crown Court to two domestic burglaries and asked for 18 further burglaries or attempted burglaries to be taken into consideration. On 20 August 2007, the judge imposed concurrent terms of five years’ imprisonment, expressed to run consecutively to an existing sentence.

The applicant had a substantial record of burglary, including distraction burglary. The Crown Court treated the offences as distraction burglaries committed against vulnerable householders. The Court of Appeal granted leave and treated the application as the substantive appeal. The central issue was whether the consecutive direction was lawful and, if not, what sentence should be imposed.

1. Appeal allowed to correct an unlawful sentence. The direction that the five-year terms should run consecutively to the applicant’s existing sentence was unlawful. Section 265(1) of the Criminal Justice Act 2003 prohibited a direction that a custodial term should commence on expiry of an earlier sentence from which the offender had been released early.

2. The sentencing process had also lacked the Attorney General’s Guidance to Prosecutors, which should have assisted the judge with the applicable sentencing arrangements. The applicant’s record meant that a mandatory sentence of at least three years applied under section 111 of the Powers of Criminal Courts (Sentencing) Act 2007.

3. The court re-sentenced under section 106 of the Powers of Criminal Courts (Sentencing) Act 2007. It treated the five-year term as appropriate, having regard to the serious and cowardly nature of the offending, the applicant’s record and risk of reoffending. It also took account of his progress in custody, his daughter’s serious illness, and his admissions of further offending. It therefore made no order under section 116, affirmed the five-year sentence without the unlawful consecutive direction, and confirmed credit for eight days spent on remand under section 240 of the Criminal Justice Act 2003.

• Court of Appeal (Criminal Division): Leave was granted and the application was treated as the substantive appeal. The court held the consecutive direction unlawful, re-sentenced, and affirmed a five-year term without that direction.

• Preston Crown Court: On 20 August 2007, following guilty pleas entered on 29 June 2007, the applicant received concurrent five-year sentences for two domestic burglaries. The judge directed that they run consecutively to an existing sentence.