McKenzie, R. v

In determining whether consecutive sentences for related offences are excessive, the appellate court must focus on the total sentence. A concurrent structure may be available, but it may properly require a higher sentence on the principal offence to reflect the additional culpability.

A sentencing direction giving credit for remand time cannot remain where the agreed lawful credit is nil. A purported variation by a differently constituted court is invalid under Powers of Criminal Courts (Sentencing) Act 2000. On appeal, the court must also ensure that the offender is not dealt with more severely overall than below.

The appellant pleaded guilty at Wolverhampton Crown Court to one robbery and four thefts committed during a short period of offending to fund cocaine use. The Recorder imposed four years’ imprisonment for robbery and consecutive concurrent terms of two years for the thefts, making six years in total. He also directed that 174 days spent on remand should count towards sentence.

It was later agreed that no remand credit was available because the appellant had been recalled to prison on an earlier sentence. A different judge purported to amend the credit to nil. The appellant appealed against sentence, challenging both the consecutive structure and the overall term. The central issues were totality and the lawful correction of the remand-credit error.

1. Appeal allowed in part. The individual sentences were not open to complaint. The robbery was serious, and the appellant’s persistent and serious record materially aggravated the offending.

2. The Recorder did not err by imposing consecutive sentences for the thefts. Concurrent sentences for all counts would also have been available, but would have required a higher robbery sentence to reflect the additional culpability. The proper appellate focus was therefore the total sentence. A total of six years was not excessive in the circumstances, even after allowing for guilty pleas.

3. The Recorder sentenced on the erroneous basis that 174 days on remand would count towards sentence under section 240 of the Criminal Justice Act 2003. The agreed lawful credit was nil. Under section 155(4) of the Powers of Criminal Courts (Sentencing) Act 2000, a sentence could be varied only by a court constituted as when sentence was imposed. Judge Warner was not that court. His purported order reducing the credit to nil was therefore unlawful and could not stand.

4. The original credit direction could not properly remain, but it was too late for the Recorder to correct it. Applying section 11(3) of the Criminal Appeal Act 1968, the court had to ensure that, taking the case as a whole, the appellant was not more severely dealt with on appeal. It quashed the remand-credit direction and substituted one year’s imprisonment, rather than two years, for each theft count. Those terms remained consecutive to the four-year robbery sentence, producing a total of five years’ imprisonment.

• Court of Appeal (Criminal Division): By [2010] EWCA Crim 2441, the court allowed the sentence appeal in part. It reduced each theft sentence, quashed the remand-credit direction, and imposed a total term of five years.

• Wolverhampton Crown Court: The Recorder imposed four years for robbery and concurrent two-year terms for four thefts, consecutive to the robbery term, making six years. He directed that 174 remand days should count towards sentence. A differently constituted court later purported to reduce that credit to nil.