R v Neil Andrew Seer

Recall to custody for breach of an earlier licence ordinarily has no bearing on sentence for a later offence. The sentencing judge nevertheless retains a discretion to reduce the new sentence where justice on the particular facts requires it, including excessive prosecution delay. That discretion does not create an entitlement to credit for time on recall. A defendant who denied the later offence cannot generally complain that the prosecution took time to assess whether proceedings should continue. The Court will not interfere on a sentence appeal merely because a discount was available; the refusal must be unjust or disproportionate. A sentence may exceed a guideline starting point where the seriousness and aggravating features justify it.

The appellant pleaded guilty in the Crown Court at Cardiff to strangulation contrary to section 75 of the Serious Crime Act 2015 and assault occasioning actual bodily harm contrary to section 47 of the Offences Against the Person Act 1861. He received a total sentence of 31 months’ imprisonment.

He had been released on licence after an earlier sentence for a drug offence and was recalled after the new offences. There was a 12 to 13-month period between the apparent completion of the investigation and the postal requisition. The appeal challenged both the length of sentence and the refusal to discount it for time spent on recall. The central issue was whether the sentencing judge had erred in declining to exercise the available discretion to take the delay into account.

Appeal dismissed.

1. The challenge to the length of sentence failed. The 18-month starting point for strangulation, identified by the sentencing judge by reference to R v Cook [2023] EWCA Crim 452, was not determinative. The sentence properly reflected the seriousness of two strangulation attacks, relevant previous convictions, the domestic setting, persistence and offending while on licence. The separate assault occasioning actual bodily harm could properly be reflected by a consecutive uplift on the strangulation count, while the concurrent sentence on the separate count respected totality.
2. The statutory sentencing regime, analysed in R v Castello [2010] EWCA Crim 371, [2011] 1 WLR 638, means that a sentence begins when pronounced, cannot be made consecutive to a continuing sentence while the offender remains in custody, and cannot count towards more than one sentence.
3. Ordinarily, recall is irrelevant to the sentence for a new offence because the offender is serving an earlier sentence and has been recalled for breaching the licence. The principles in R v Kerrigan [2014] EWCA Crim 2348, [2015] 1 Cr App R (S) 29 establish, however, that the judge retains a discretion to do justice on the particular facts. That may include reducing an otherwise appropriate sentence where there has been excessive delay. The approach was also recognised in R v Phillips [2015] 2 Cr App R (S) 9 and R v Christie [2019] EWCA Crim 1386, [2019] 2 Cr App R 54.
4. The sentencing judge had that discretion but was not shown to have exercised it wrongly. The recall related to a separate drug offence, and the appellant had denied the new offences in interview, making careful consideration of whether prosecution should proceed understandable. Although the delay was unexplained, the decision not to grant a discount was not unjust or disproportionate on these facts.

• Court of Appeal (Criminal Division): On 20 June 2024, the appeal against sentence was dismissed: [2024] EWCA Crim 776.
• Crown Court at Cardiff: On 10 January 2024, the appellant was sentenced to 2 years and 7 months’ imprisonment for strangulation, with a concurrent 12-month sentence for assault occasioning actual bodily harm.