Round & Anor v R

A sentencing court should impose the proper sentence and express consecutive terms in the natural and comprehensible order. It should not adjust either the sentence or its order to maximise a prisoner's possible earlier release under home detention curfew.

Early release, licence and home detention curfew are governed by statute and, in the case of curfew, executive discretion. Eligibility and actual release are uncertain and may depend on changing policy and individual circumstances. The existence of differing statutory release regimes does not transfer their administration to the sentencing court. Although an unusual course may sometimes be justified, it will ordinarily be wrong for a sentencer to undertake detailed release and licence calculations.

Two prisoners appealed against sentence from the Crown Court. Neither challenged the length of his sentence. Each contended that consecutive terms governed respectively by the Criminal Justice Act 1991 and the Criminal Justice Act 2003 should be reordered so that he might become eligible for home detention curfew earlier.

Round received three years' imprisonment for burglary and a consecutive three months for failing to surrender. Dunn received 18 months for assault occasioning actual bodily harm and a consecutive four months for common assault. The court granted leave because the appeals raised an important sentencing principle. Further inquiry showed that Dunn's shorter term had in fact been pronounced first, so no alteration of his sentence was ultimately sought.

The central issue was whether a sentencing judge must structure consecutive sentences in an unconventional order to maximise the uncertain possibility of discretionary home detention curfew.

1. Both appeals against sentence were dismissed. The sentence imposed on Round was not wrong in principle. No variation was sought in Dunn's case after it was established that the shorter sentence had in fact been pronounced first.

2. Under the transitional scheme, terms of less than 12 months remained governed by the Criminal Justice Act 1991, whereas later terms of 12 months or more were governed by the Criminal Justice Act 2003. Following R (Noone) v Governor of HMP Drake Hall and the Secretary of State for Justice [2008] EWCA Civ 1097, consecutive terms under the two Acts had to be calculated separately. Their order could therefore affect eligibility for home detention curfew and the period of licence.

3. That statutory anomaly did not make it incumbent on the sentencing court to reverse the natural order of properly imposed consecutive sentences. There was no discernible statutory policy requiring the earliest possible curfew release. The position resulted from legislation, including the commencement order, and could not properly be corrected by a judicially imposed shortest-term-first rule.

4. Early release and licence are generally matters for statute and the executive, rather than sentencing. Home detention curfew is discretionary. Its availability, timing and conditions depend on policy and individual assessment, and may change after sentence. A court should not alter a proper sentence by attempting to predict that discretionary decision.

5. The court also rejected detailed licence and release calculations as impracticable and liable to create further anomalies. A sentencing court should ordinarily express its sentences in the most natural and comprehensible way, often by stating the principal and longest term first. This accords with the duty under section 174(1)(b)(i) of the Criminal Justice Act 2003 to explain the effect of sentence in ordinary language. An unusual order may be justified in a particular case, but it is not required to secure a potential curfew advantage.

6. The court urged the Ministry of Justice to explore practicable legislative means of reducing the unfair anomalies produced by the coexisting regimes.

• Court of Appeal (Criminal Division): Leave to appeal against sentence was granted and both appeals were dismissed in [2009] EWCA Crim 2667.
• Crown Court: Consecutive custodial sentences had been imposed at Worcester Crown Court and Lewes Crown Court. The Court of Appeal held that the order in which Round's terms had been pronounced disclosed no error of principle.