Giga, R. v

A sentencing judge's function is to fix the overall length of the sentence that the offending merits. The judge must explain the statutory release consequences, but that explanation does not ordinarily form part of the sentencing decision.

Accordingly, an error about the release regime does not make a sentence wrong in principle or manifestly excessive merely because the offender will serve longer in custody than the judge stated. The position may differ where the sentencing remarks show that the judge consciously tailored the sentence to achieve a particular period in custody under the applicable regime.

The appellant was convicted at Cambridge Crown Court of incitement to cause grievous bodily harm with intent and making threats to kill. He received six years' imprisonment for the incitement and a concurrent three-year sentence for the threats.

The recorder stated that the appellant would serve half of the six-year term before release. The offences were, however, governed by the earlier release regime under the Criminal Justice Act 1991, under which he would serve two-thirds.

An earlier appeal against conviction and sentence had been dismissed. The Criminal Cases Review Commission then referred the case under section 9 of the Criminal Appeal Act 1995. The issue was whether the sentence should be reduced because the recorder had misstated the period to be served in custody.

1. The appeal constituted by the reference was dismissed. The recorder imposed the sentence he considered appropriate for the offences, having regard to their seriousness, mitigation and the circumstances as a whole. The six-year term was not wrong in principle or manifestly excessive.

2. A sentencing judge's task is to determine the appropriate overall term of imprisonment. The statutory release provisions should not determine that assessment. The judge must explain their effect in open court, but an error in that explanation does not itself undermine the sentence.

3. The court preferred the principle stated in Bright [2008] EWCA Crim 462. A statement that release will occur after a particular period is the stated consequence of the sentence under the regime the judge believes applies. It does not, without more, establish an intention to impose a sentence producing that precise custodial period.

4. There was no basis for finding that the recorder consciously intended the appellant to serve three years, rather than imposing a six-year sentence. His erroneous reference to release after half the term was a required explanation of the sentence's effect, made under the wrong statutory regime. It did not make the sentence unfair in a sense capable of founding an appeal.

• Court of Appeal (Criminal Division): On a reference by the Criminal Cases Review Commission, dismissed the appeal: [2008] EWCA Crim 703.

• Full Court: On 30 January 2007, dismissed the appellant's appeal against conviction and sentence.

• Crown Court at Cambridge: On 3 November 2005, convicted the appellant and imposed a six-year sentence for incitement to cause grievous bodily harm with intent, with a concurrent three-year sentence for threats to kill.