Jonsyn, R. v

Under Criminal Justice Act 2003, section 240 ZA, a day spent on remand cannot count towards a sentence if the offender was also detained in connection with another matter. Sentencing courts should ordinarily determine sentence without regard to administrative credit for remand time.

However, an appellate court may correct an otherwise appropriate sentence where the sentencing judge deliberately incorporated an assumed remand-credit outcome into the exercise of sentencing discretion and totality. The court must distinguish a mere legal misstatement about release consequences from an intended sentencing outcome established by the record.

The appellant pleaded guilty to assault occasioning actual bodily harm after attacking the complainant with a bottle. He was already serving detention for a separate offence of grievous bodily harm when he was remanded on the assault charge.

At Aylesbury Crown Court, the recorder imposed 46 weeks’ detention consecutively and directed that 131 days spent on remand should count towards that sentence. The direction was legally ineffective because the appellant had also been detained under the separate custodial sentence. The appeal concerned whether the term should be reduced to give effect to the recorder’s intended overall sentencing outcome.

1. Appeal allowed. The court quashed the consecutive sentence of 46 weeks’ detention and substituted 60 days’ detention.
2. Section 240 ZA(4) of the Criminal Justice Act 2003 prevented the recorder from directing that the remand period count towards the assault sentence. On each relevant day the appellant was also detained in connection with the separate grievous bodily harm matter. Section 240 ZA(10) confirmed that detention under a custodial sentence was included.
3. The court agreed that, following the statutory amendment, sentencing courts should ordinarily determine sentence without reference to possible administrative credit for remand time. A mistaken statement about release provisions will not, by itself, justify interference with an otherwise proper custodial sentence. The court referred to Round [2010] 2 Cr App R (S) 45, Bright [2008] 2 Cr App R (S) 102 and Giga [2008] 2 Cr App R (S) 112.
4. This case was exceptional. The transcript showed that, after receiving joint but erroneous submissions from both advocates, the recorder had treated the remand period as part of his discretionary assessment of the overall sentence and totality. He was not merely misstating the administrative credit rules. The parties had also understood that the 131 days would reduce the effective period to be served.
5. Although 46 weeks was, viewed in isolation, entirely proper, substitution of 60 days gave effect to the outcome the recorder had intended. The court stressed that the appellant was fortunate and that counsel should have sought time to research the statutory position before advising the recorder.

• Court of Appeal (Criminal Division): Allowed the appeal and substituted 60 days’ detention for the consecutive term of 46 weeks: [2014] EWCA Crim 239.
• Crown Court at Aylesbury: On 12 September 2013, imposed 46 weeks’ detention consecutively for assault occasioning actual bodily harm and purported to direct that remand time count towards it.