Healy, R v

MR JUSTICE TREACY: This appellant is Francis John Healy. On 9th September 2003 at the Inner London Crown Court he pleaded guilty and was sentenced by His Honour Judge Campbell for an offence of handling stolen goods. For that offence he received a term of 15 months' imprisonment and it was ordered to run consecutively for a period of 537 days for breach of licence pursuant to section 116 of the Powers of Criminal Courts (Sentencing) Act 2000. In addition to the offence of handling stolen goods which was on the indictment the judge was asked to, and did, take into account a further offence of handling stolen goods.

The single judge granted leave in relation to this matter. The background circumstances are as follows. On 17th May 2003 a BT cordless telephone was taken during a night-time burglary of an occupied dwelling. Some six days later, on 23rd May 2003, there was a further night-time burglary of another occupied dwelling. This time a laptop computer, a business pass, a mini disc player, a camera and a wallet were taken. Each of the two burglaries involved a professional type of entry. There was no evidence to suggest that the appellant was involved in the burglaries themselves.

Within a few hours of the second burglary, police officers went to a hostel where the appellant was staying. They had a warrant. They arrived at the hostel at 7 o'clock in the morning. They searched the premises and found, first of all, a BT cordless telephone, and, secondly, a laptop computer, a camera and a mini disc player. The property had come from the two burglaries to which we have referred.

When interviewed about the matter, the appellant said that somebody staying at the hostel had woken him at about 3.00am, on the morning of the police visit, and given him a bag with the laptop and asked him to look after it. He did so suspecting that the property was stolen and was told he would receive some payment for looking after it. He agreed that the BT cordless telephone had been passed to him in similar circumstances.

In due course, the appellant pleaded guilty to a single offence of handling with one taken into consideration as we have stated.

We turn now to the breach of licence which forms part of the sentencing process. On 14th April 2000, again at the Inner London Crown Court, this appellant was dealt with for two offences of attempted burglary and an offence of theft. He received a term of 4½ years' imprisonment. He was released on licence from that sentence on 2nd April 2003. That is, about 6 weeks before the first of the domestic burglaries to which we have referred.

He received a notice of revocation of licence on 9th June 2003 and went into custody. Information now provided to us shows that the revocation ran until 29th August 2003. At that point the appellant reverted to remand status prior to his sentencing on 9th September 2003. It follows that he spent some 81 days in custody, after the revocation of his licence and before he was sentenced, whilst he was not being treated as a remand prisoner, but being treated as a prisoner whose licence in relation to a previous offence had been revoked. The status of this period in custody was not drawn to the sentencing judge's attention.

The appellant is 38 years of age. He has a very long criminal record, including 26 offences of burglary, of which 23 are dwelling house burglaries. In addition he has 6 previous convictions for attempted burglaries, all of dwellings, 7 convictions of theft, and 1 for handling stolen goods.

The appeal is brought before us on the basis that the sentencing judge failed to take into account the 81 days served after this appellant's licence had been revoked and that allowance should have been made for that in the sentencing process. No allowance was in fact made by the sentencing judge because he was unaware of the period of 81 days as a matter to be taken into consideration by him.

Given this appellant's bad record for dishonesty, and his offending within 6 weeks of release on licence, and his obvious proximity to the night-time dwellinghouse burglar who stole the property, the sentence imposed cannot be criticised save in one respect. Regrettably, the judge did not have all the relevant information given to him concerning the time spent in custody.

The decisions of this court in the case of Stocker [2003] 2 Cr.App.R(S) 54 and Teasdale [2004] 1 Cr.App.R(S) 6 demonstrate that where an offender is convicted of an offence committed following his release from an earlier sentence, the court making an order under section 116 of the Powers of Criminal Courts (Sentencing) Act 2000 returning him to custody in respect of the earlier sentence, should make an appropriate allowance for any time spent in custody following the revocation of his licence pursuant to section 39 of the Criminal Justice Act 1991.

As the two authorities cited show, the correct way to make an allowance in the case of a short-term prisoner is to double the period served, that is a period of 81 days, and to deduct that from the maximum period under section 116. Performing that exercise in this case results in the figure of 375 days to be served in relation to section 116.

It follows, therefore, that the judge's order that a period of 537 days be served was wrong in principle. It may well be that the appellant is fortunate as the judge took account of the 537 days in fixing the 15 month period for the handling offence. Be that as it may, we conclude that we should allow this appeal to the extent of ordering that a period of 375 days be substituted for the 537 days imposed under section 116, and to that extent the appeal is allowed.

We would only wish to emphasise, yet again, the desirability of avoiding this unnecessary type of appeal. Counsel must ensure that they have obtained the fullest information prior to sentence in any case where a section 116 element is to be involved, and judges need to be alert to the potential pitfalls illustrated by this and earlier appeals.

LORD JUSTICE ROSE: Miss Hay, I think we should make explicit what is implicit by reason of what has happened, that we are grateful to you for your succinct advice and grounds.

MISS HAY: I am grateful, my Lord.

LORD JUSTICE ROSE: Thank you.