Elkington, R. v

Time spent in custody following recall on licence does not justify reducing a later sentence unless there has been excessive delay. A sentencing court may depart from sentencing guidelines where the interests of justice require it, but the custodial term must remain justified and proportionate. Where future violence is the concern, an extended licence period may provide the necessary public protection without imposing an unjustifiably lengthy custodial term.

The appellant pleaded guilty at the Crown Court at Warwick to assault occasioning actual bodily harm and assault by beating committed against his partner. He had a lengthy record of violent offending and was on recall from an earlier extended sentence.

The Recorder imposed an extended sentence of five years for the actual bodily harm assault, comprising 44 months’ custody and a 16-month extended licence. The appellant appealed against sentence, contending that insufficient allowance had been made for time in custody on recall and that the custodial starting point was too high.

1. Appeal allowed. The court rejected the contention that the custodial term should be reduced for time spent in custody on recall. Reduction was not appropriate absent excessive delay. The period from the offending in April 2014 to sentence in October 2014, including an adjournment for assessment of dangerousness, was not excessive.
2. The court accepted that it could be contrary to the interests of justice to follow the sentencing guidelines. Nevertheless, the 44-month custodial term, after credit for the guilty plea, was close to the five-year statutory maximum for assault occasioning actual bodily harm. The appellant’s record did not justify a custodial term of that length.
3. The risk of further violence was properly addressed by an extended licence period. The court therefore quashed the 44-month custodial element and substituted 36 months’ imprisonment. It extended the licence period to 24 months, leaving the overall extended sentence at five years.

• Court of Appeal (Criminal Division): Allowed the sentence appeal and varied the extended sentence: [2015] EWCA Crim 659.
• Crown Court at Warwick: Recorder Evans imposed an extended sentence of five years, comprising 44 months’ custody and a 16-month extended licence.