Moloney, R. v

Where an offender has been released on licence from an earlier sentence, a sentencing court cannot direct a later term of imprisonment to begin when that earlier sentence expires under section 265(1) of the Criminal Justice Act 2003.

An appellate court may correct that unlawful order by restructuring the sentence. It must not, however, deal with the offender more severely than the court below. Where the statutory power to order a return to prison remains available, the court must calculate its lawful maximum and then select the period which justice requires in light of the offending.

The applicant was convicted at Worcester Crown Court of possessing an offensive weapon after an altercation at licensed premises. On 20 November 2006 he received three years’ imprisonment, ordered to run consecutively to an earlier extended sentence imposed under the Crime and Disorder Act 1998.

He had been released on licence from the earlier sentence before committing the index offence. His licence was later revoked. The Registrar referred his applications for an extension of time and leave to appeal against sentence to the Full Court.

The central issue was whether the unlawful consecutive order could be replaced with a lawful order for return to prison and, if so, what period was just.

1. The court granted an extension of time and leave to appeal. It allowed the appeal to the limited extent necessary to correct the sentencing order.

2. The Crown Court had no power to make the three-year sentence consecutive to the earlier sentence. The applicant had been released on licence from that sentence, so section 265(1) of the Criminal Justice Act 2003 prohibited a direction that the later term should commence on its expiry.

3. Under section 11(3) of the Criminal Appeals Act 1968, the Court of Appeal could restructure the sentence but could not deal with the applicant more severely than the Crown Court had done. The parties agreed that this restriction limited any order for return to prison to 1,030 days.

4. Section 116 of the Powers of Criminal Court (Sentencing) Act 2000 remained available for the relevant earlier sentence. It permitted an order for return to prison before, or concurrently with, the index-offence sentence. The theoretical statutory maximum was 1,894 days after taking account of the extension period under section 117(5) and crediting twice the 34 days spent on administrative recall.

5. Having regard to the seriousness of the offending, justice required a return-to-prison period of 365 days. Formally, the unchallenged three-year sentence was to follow that period. The 24 days’ remand credit against the index-offence sentence remained in place.

• Court of Appeal (Criminal Division) — [2009] EWCA Crim 2244: granted an extension of time and leave to appeal, and allowed the sentence appeal to correct the unlawful consecutive order.
• Worcester Crown Court — convicted the applicant of possessing an offensive weapon on 22 September 2006 and, on 20 November 2006, imposed three years’ imprisonment consecutively to an earlier sentence.