REGINA v GAVIN TRENDELL

When imposing a discretionary life sentence and fixing a minimum term, the court must take account of the effect that credit for remand custody would have had on a determinate sentence under Criminal Justice Act 2003, section 240ZA. The statute does not require an identical day-for-day deduction, since the court retains discretion as to the appropriate minimum term.

Ordinarily, however, the minimum term should be reduced by the precise number of qualifying remand days. A different course requires a compelling or unusual reason. Automatic administrative credit applies only to determinate sentences. Failure to consider remand custody when fixing a life-sentence minimum term is therefore an error of principle which the court must correct.

The appellant pleaded guilty in the Crown Court at Maidstone to causing grievous bodily harm with intent and false imprisonment. He received a discretionary life sentence, with an eight-year minimum term, after having spent 203 days in custody on remand.

On an earlier appeal, the minimum term was reduced to six years, but neither the sentencing judge nor the earlier appellate court considered remand credit. The Criminal Cases Review Commission referred the sentence under Criminal Appeal Act 1995, section 9.

The central issue was whether, and how, the period of remand custody had to be reflected in the minimum term for a discretionary life sentence.

1. Appeal allowed. The court quashed the six-year minimum term and substituted a minimum term of five years and 162 days.

2. Under Powers of Criminal Courts (Sentencing) Act 2000, section 82A, now reflected in section 323 of the Sentencing Code 2020, the court must impose the minimum term it considers appropriate while taking account of the effect of section 240ZA of the Criminal Justice Act 2003. That obligation requires consideration of the statutory effect; it does not confer a statutory right to an automatic deduction from the minimum term.

3. Section 240ZA automatically credits qualifying remand custody against a determinate sentence, as recognised in R (Shields-McKinley) v Secretary of State for Justice and Lord Chancellor [2019] EWCA Civ 1954. It does not automatically apply where a discretionary life sentence and a minimum term order are imposed: R v Sylvester [2018] EWCA Crim 599. Only the sentencing court can make the required allowance in the latter situation.

4. Although the court retains a residual discretion, the usual and transparent course is first to determine the appropriate minimum term and then deduct the exact qualifying remand period. Departure from that course may be appropriate in unusual circumstances, but none arose here.

5. The sentencing judge had not considered the remand period at all. The omission was not cured administratively and meant that a mandatory consideration had been left out of account. The minimum term was accordingly wrong in principle.

1. Court of Appeal (Criminal Division): On a reference by the Criminal Cases Review Commission under section 9 of the Criminal Appeal Act 1995, the court allowed the appeal and substituted a minimum term of five years and 162 days.

2. Court of Appeal (Criminal Division): On 20 June 2019, an earlier constitution reduced the appellant's minimum term from eight years to six years.

3. Crown Court at Maidstone: On 12 October 2018, the appellant was sentenced to life imprisonment with an eight-year minimum term.