Wolstenholme, R v

Where consecutive custodial sentences include one of less than 12 months and one of 12 months or more, the order in which they are imposed can affect home detention curfew eligibility under the transitional statutory regime. To avoid prejudicing the offender, the sentence of less than 12 months should be ordered first. Sentencing courts must consider this consequence whenever imposing such consecutive sentences, even though the natural presentation of the longer sentence first may suggest the opposite order.

R v Wolstenholme concerned an application, made 114 days late, for leave to appeal against sentence. The applicant had pleaded guilty to being concerned in supplying cocaine, possessing cannabis, and possessing two bladed articles. He received 18 months’ detention in a young offender institution for the cocaine offence and a consecutive three-month sentence for the bladed-article offences.

The total term was not challenged as excessive. The issue was whether the order of consecutive sentences prevented the applicant from obtaining the benefit of home detention curfew under the transitional arrangements between the Criminal Justice Act 1991 and the Criminal Justice Act 2003.

1. Leave was granted and the appeal was allowed. The court did not alter the individual sentences or their aggregate effect. It reversed their order, so that the three-month sentence was to be served before the 18-month sentence.

2. Under the transitional regime created by the Criminal Justice Act 2003 (Commencement No 8 and Transitional and Saving Provisions) Order 2005, a sentence of less than 12 months remained governed by the Criminal Justice Act 1991, even when imposed consecutively with another sentence. A sentence of 12 months or more was governed by the Criminal Justice Act 2003.

3. Accordingly, where consecutive sentences straddle the 12-month threshold, placing the shorter sentence after the longer one can delay the point at which home detention curfew may be granted. The shorter sentence should therefore be imposed first unless a resulting disadvantage to the offender is intended.

4. The court described this consequence as a sentencing trap which must be considered and drawn to the sentencing judge’s attention. Since the three-month sentence had been placed after the 18-month sentence, the applicant was prejudiced in relation to release on licence or home detention curfew. Reordering the sentences cured that prejudice.

• Court of Appeal (Criminal Division): Granted leave, including an extension of time, and allowed the sentence appeal by reversing the order of the consecutive sentences: [2009] EWCA Crim 1902 .

• Sentencing court (not identified): Imposed 18 months’ detention in a young offender institution for being concerned in the supply of cocaine, followed by three months’ detention for bladed-article offences.