R. v Starr

A court may not direct a new prison term to begin only when an earlier sentence, from which the offender has been released, expires. A recall for breach of licence does not alter the fact of that release: Criminal Justice Act 2003, section 265 therefore makes such a direction unlawful.

Where section 116 of the Powers of Criminal Courts (Sentencing) Act remained applicable, however, the lawful route was to direct service of the outstanding part of the original sentence and make the new sentence run consecutively from its end. An appellate court may quash the unlawful form of sentence and substitute that lawful order, even where it produces the same practical term.

The applicant was sentenced on 11 October 2006 to five years’ imprisonment for burglary, theft, handling stolen property and possession of an imitation firearm. He was then serving a period of recall following release from an earlier sentence imposed on 18 March 2005.

The sentencing judge directed that the new sentence should start on 5 December 2006, when the applicant was expected to complete the recall period. More than six years later, the applicant appealed on the ground that this direction contravened section 265 of the Criminal Justice Act 2003.

The issue was whether the sentence was unlawful and, if so, whether the Court of Appeal could lawfully reconstruct it under section 116 of the Powers of Criminal Courts (Sentencing) Act so as to achieve the same practical result.

1. Appeal allowed on a technical basis. The direction that the five-year term should begin after the expiry of the earlier sentence was unlawful. Section 265 of the Criminal Justice Act 2003 prohibited a court from directing a prison term to commence on expiry of a sentence from which the offender had been released. The applicant had been released from the March 2005 sentence. His subsequent recall for breach of licence did not alter that position.

2. The court treated that conclusion as consistent with Costello [2010] 2 Cr App R (S)608. That authority confirmed that, following repeal of section 116 for later offences, a court could not evade the resulting overlap by increasing the sentence for the later offence. Such an increase would breach the requirement that sentence be commensurate with the offence.

3. The repeal of section 116 did not, however, apply to the relevant pre-4 April 2005 offending in this case. The sentencing judge therefore had power under section 116 to direct the applicant to serve the outstanding part of the original sentence until 5 December 2006, and to order the five-year term to run from that date.

4. The court exercised that power itself. It quashed the unlawful sentence and substituted a section 116 order producing precisely the same practical result. That course was stated to accord with Jesson [2008] 1 Cr.App.R (S) 195.

• Court of Appeal (Criminal Division): The appeal was allowed because the form of the sentencing direction was unlawful. The court quashed it and substituted a lawful order under section 116 of the Powers of Criminal Courts (Sentencing) Act.
• Sentencing court: On 11 October 2006, Recorder Jameson QC imposed five years’ imprisonment and directed it to begin on 5 December 2006 after the applicant’s recall period.