Mayo, R. v

Time spent on remand for a later offence which overlaps with custody following recall for breach of licence is not automatically credited against the later sentence. Section 240ZA prevents double counting. The sentencing court retains a general discretion to do justice, but there must be a proper basis to exercise it.

A sentence may exceed a guideline category’s stated range where the number and seriousness of the aggravating features justify that course. The appellate question remains whether the overall sentence is manifestly excessive.

The appellant pleaded guilty at Chester Crown Court to burglary of a dwelling and theft of a motor car taken during the burglary. He received 28 months’ imprisonment for burglary and a consecutive two-year sentence for theft, making four years and four months.

He appealed with leave of the single judge. He challenged the finding that the offences were planned, the consecutive sentences and the absence of credit for time spent in custody after his recall on licence. The central issue was whether the total sentence was manifestly excessive or should be adjusted for the overlapping period of recall custody.

1. Appeal dismissed. The total sentence of four years and four months was not manifestly excessive.
2. The sentencing judge was entitled to reject the account that the burglary was opportunistic. The journey from Manchester with others, the theft of a high-value car and the surrounding circumstances supported a finding of significant planning and organisation.
3. The burglary was properly treated as a category 1 offence of high culpability. Relevant aggravating features included the appellant’s serious record, offending while on licence, the presence of a child in the home, the night-time commission of the offence and the involvement of others. The number and seriousness of those features justified a starting point above the category’s usual upper range.
4. The court would not itself have ordered the two sentences to be consecutive. Nevertheless, the judge’s starting point of six and a half years was not manifestly excessive and the resulting sentence required no intervention.
5. Applying R v Kerrigan & Anor [2014] EWCA Crim 2348, remand time which overlapped with custody on recall could not be counted twice. Section 240ZA prevented automatic credit. No circumstances justified exercise of the residual discretion to adjust the sentence.

• Court of Appeal (Criminal Division): dismissed the sentence appeal: [2015] EWCA Crim 628.
• Crown Court at Chester: the appellant pleaded guilty at a preliminary hearing on 8 May 2014 and, on 23 October 2014, received 28 months’ imprisonment for burglary and a consecutive two-year sentence for theft.