MacDonald, R v

A sentence for revenge against a witness must reflect the grave harm which such conduct causes to the administration of justice. The sentencing court must nevertheless select a proportionate starting point and give proper credit for a guilty plea. On the facts of this case, a four-year starting point followed by a full one-third reduction for the plea produced a sentence of two years and six months.

Where the offender is serving an earlier custodial sentence following recall, Criminal Justice Act 2003 section 265 requires the fresh sentence to run concurrently. Time already spent in custody serving the earlier sentence does not count again against the fresh sentence.

The appellant pleaded guilty at Lewes Crown Court to revenge against a Crown witness, contrary to section 51(2) of the Criminal Justice and Public Order Act. The offence followed threats and a punch directed at a witness who had given evidence against him in earlier proceedings.

On 9 November 2007, the Crown Court imposed four years’ imprisonment and purported to give credit for 75 days said to have been spent on remand. The appellant appealed with the single judge’s leave, contending that the starting point and guilty-plea reduction were excessive. A further issue was whether the new sentence should be concurrent with the earlier sentence which he was serving after recall.

1. Appeal allowed. The four-year sentence was quashed and replaced by a sentence of two years and six months’ imprisonment.

2. Revenge against a person who has given evidence is a very serious offence because it threatens the willingness of responsible members of the public to discharge their duty as witnesses. A deterrent sentence was therefore justified. However, the statutory maximum of five years was not the proper starting point on these facts.

3. The appropriate starting point was four years’ imprisonment. The appellant was entitled to a full one-third reduction for his guilty plea. That calculation produced a sentence of two years and six months.

4. The sentencing judge had been misled into believing that the appellant was on remand. He had instead been recalled and was serving the sentence imposed for the earlier offence. Applying section 265 of the Criminal Justice Act 2003, the new sentence was to run concurrently with that earlier sentence.

5. No order was made that the 75 days before sentence should count towards the new term. During that period the appellant had been serving the original sentence.

• Court of Appeal (Criminal Division): Allowed the appeal, quashed the four-year sentence, and substituted two years and six months’ imprisonment to run concurrently with the earlier sentence.

• Lewes Crown Court: On 9 November 2007, following a guilty plea to revenge against a witness, imposed four years’ imprisonment and directed that 75 days in custody should count towards that sentence.