Henry, R v

Where remand time cannot count towards a new sentence because the offender is serving an earlier sentence, the Court of Appeal may reduce the new sentence to prevent an obvious and unjust disparity with a co-accused whose appeal has received equivalent allowance. A direction that sentences run concurrently does not necessarily show that the sentencing judge intended the later sentence to have retrospective effect. In this case, fairness required a reduction notwithstanding that uncertainty.

James Henry was convicted at the Crown Court at Manchester of attempted kidnap, two offences of wounding with intent, and possession of a firearm with intent to endanger life. On 18 August 2016 he received concurrent sentences, the longest being 15 years’ imprisonment for the firearm offence.

At that time he was serving a five-year sentence imposed in 2015. The remand time awaiting sentence in these proceedings did not count towards the new sentence under section 240 Z of the Criminal Justice Act 2003. The appeal concerned whether the concurrent 15-year sentence should be reduced to reflect that lost remand time and to avoid disparity with a co-accused.

1. Appeal allowed in part. The court quashed the 15-year sentence for possession of a firearm with intent to endanger life and substituted a sentence of 13 years and four months’ imprisonment.

2. The appellant’s remand time did not count towards the new sentence because he was then serving the earlier five-year sentence. The court was not persuaded that the sentencing judge’s direction that the new sentence should run concurrently demonstrated an intention to give it retrospective effect. It did, however, confirm that the judge did not intend a consecutive sentence.

3. Allowing the 15-year sentence to stand would create an obvious unfairness. A co-accused, R v James Anthony Instone [2017] EWCA Crim 1187, had obtained a reduction to reflect remand time which did not count while he was serving another sentence. The appellant required equivalent allowance.

4. The appropriate means of giving credit for the ten months before sentence was to reduce the firearm sentence by 20 months. The remaining concurrent sentences were unaffected.

• Court of Appeal (Criminal Division): in [2018] EWCA Crim 2663, allowed the sentence appeal to the limited extent of quashing the 15-year sentence on count 4 and substituting 13 years and four months.

• Crown Court at Manchester: following conviction after trial, sentenced Henry on 18 August 2016 to concurrent terms, including 15 years’ imprisonment for possession of a firearm with intent to endanger life.