Costello v R.

A court sentencing an offender for an offence committed while on licence must impose the shortest custodial term commensurate with the new offence and any offences associated with it. It may not increase that sentence to ensure that it adds a particular period of custody beyond an earlier sentence.

The prohibition on making the new sentence consecutive to a sentence from which the offender has been released is directed to the form of the order. It does not itself forbid an additional practical custodial effect. However, repeal of the former court power to order return to prison, together with the uncertain duration of administrative recall, provides no lawful basis for inflating the new sentence.

The appellant committed assault occasioning actual bodily harm while released on licence from an earlier combined sentence. He had been administratively recalled before sentence for the new offence.

The sentencing judge considered that the new offence warranted 12 months’ imprisonment. He imposed 31 months instead, so that early release under the new sentence would nevertheless leave an additional period in custody after the earlier sentence. The appeal challenged the legality of that increase.

The central issue was whether a sentencing court could increase a sentence for a new offence to secure an additional custodial effect where the offender had been recalled while on licence from an earlier sentence.

1. Appeal allowed. The sentence of 31 months was quashed and replaced with 12 months’ imprisonment, effective from 25 March 2009.

2. Under s 153(2) of the Criminal Justice Act 2003, the court must impose the shortest term commensurate with the seriousness of the new offence and associated offences. The earlier offence for which the offender was already serving sentence was not an associated offence. The new sentence could not therefore be increased to compensate for its anticipated overlap with the outstanding period of the earlier sentence.

3. Section 265 of the Criminal Justice Act 2003 prevented the court from making the new sentence formally consecutive to a sentence from which the offender had been released on licence. The provision addressed the form and calculation of sentences, rather than creating a principled objection to the new offence adding custody. It did not, however, authorise an inflated sentence designed to achieve the prohibited practical result.

4. The former power under s 116 of the Powers of Criminal Courts (Sentencing) Act 2000 had enabled a court to order return to prison under the earlier sentence and direct that the new sentence follow it. Its repeal was deliberate. A court could not recreate that repealed power indirectly by increasing the new sentence.

5. Administrative recall did not reliably supply a basis for such an increase. Under the recall provisions, a prisoner might be re-released after 28 days or at another time. The sentencing judge could not know how long the recall would last and therefore could not calculate any legitimate increase required to produce a chosen net custodial effect.

The court acknowledged that the statutory result could appear unsatisfactory and invited Parliament to consider whether to restore a judicial return-to-prison power. That was a legislative, rather than judicial, matter.

• Court of Appeal (Criminal Division): Allowed the appeal, quashed the 31-month sentence and substituted 12 months’ imprisonment: [2010] EWCA Crim 371.
• Luton Crown Court: Imposed 31 months’ imprisonment for the new assault offence after increasing the term to secure an additional custodial effect alongside administrative recall.