R v Michael Costin

A sentencing court may retain a residual discretion to adjust a new custodial sentence where custody served under an existing sentence cannot count towards it. The discretion is fact-sensitive and does not create an entitlement to a set-off. It may be exercised where justice requires, including after significant delay through no fault of the offender.

An offender serving an imprisonment for public protection sentence is not equivalent to a remand prisoner. The court should not speculate whether the Parole Board would have released the offender had the newly sentenced offences remained undiscovered. Where those offences would materially affect risk assessment and parole, their impact on parole prospects does not require a sentencing allowance.

The appellant was sentenced at the Crown Court at Snaresbrook on 24 July 2024 for 22 historic offences of indecent assault. The offences were committed in two periods during the 1980s and 1990s against children connected with scout groups. The judge imposed concurrent sentences within each period and made one sentence consecutive to the other, producing a total of 15 years and three months’ imprisonment.

The appellant was already serving an imprisonment for public protection sentence for later sexual offences. He appealed against sentence on the sole ground that insufficient weight had been given to the punitive effects of the new proceedings upon his parole prospects and to time in custody which could not count towards the new sentence.

1. Appeal dismissed. The judge was entitled to decline any further reduction of the new sentence for the appellant’s time in custody while serving the imprisonment for public protection sentence.

2. Time spent in custody while serving that sentence could not count towards the sentence imposed for the present offences. The court accepted that a sentencing judge has a residual discretion to make an adjustment where justice requires it, for example after excessive delay. That discretion does not confer a right to a set-off: R v Ashley [2024] EWCA Crim 1456.

3. The judge correctly treated the appellant’s position as materially different from remand custody. The court could not properly speculate that the Parole Board would have released him had the historic offences not been investigated. Any such assessment would have been made without knowledge of their true extent, the appellant’s continuing denials, and matters bearing directly on risk.

4. The investigation and trial did not involve undue delay. The offences were historic and numerous, further complainants came forward over time, and the appellant admitted some offences late and contested others. The judge had already made an appropriate allowance for the separate delay between verdict and sentence.

5. The overall sentence remained just and proportionate. The two groups of offending involved different periods, groups and victims. Concurrent terms within each group, followed by consecutive terms between the groups, gave effective punishment for all the offending.

• Court of Appeal (Criminal Division): dismissed the appellant’s appeal against sentence: [2025] EWCA Crim 729.

• Crown Court at Snaresbrook: on 24 July 2024 imposed a total sentence of 15 years and three months’ imprisonment for 22 offences of indecent assault.