Hunt, R. v

LORD JUSTICE MOORE-BICK: On 16th November 2005 the appellant pleaded guilty before the magistrates to offences of burglary, theft, dangerous driving, making off without payment, driving without insurance and driving without a licence. He was committed to the Crown Court for sentence pursuant to sections 3 and 6 of the Powers of Criminal Courts (Sentencing) Act 2000. He asked for four other offences of burglary (including burglary of a dwelling), attempted deception, making off without payment and theft to be taken into consideration.

On 6th January 2006 in the Crown Court at Swindon he was sentenced by Miss Recorder Collins as follows: in respect of the burglary, 18 months' imprisonment; in respect of the theft, 12 months' imprisonment consecutive; in respect of the dangerous driving 12 months' imprisonment consecutive; in respect of making off without payment, 3 months' imprisonment concurrent; in respect of the offences of using a vehicle without insurance and driving without a licence, no separate penalty. The Recorder thus sentenced him to a total period of three-and-a-half years' imprisonment. He was also disqualified from driving for two-and-a-half years and until he had passed an extended driving test.

In December 2002 the appellant had been sentenced to 45 months' detention for offences of robbery and theft. He was released on licence in June 2004 but was recalled in October 2004 following the commission of further offences which included theft from dwellings. He was then sentenced for those new matters and released again in May 2005.

Following his release, he ceased to have contact with the probation service in July of that year which again led to his recall, but at that stage the appellant ‘went on the run’. As a result, he was unlawfully at large at the time he committed the offences for which he was sentenced by Miss Recorder Collins.

Having committed an offence before the expiry of the full term of that earlier sentence of 45 months' detention, he was at risk of being ordered to return to custody to serve the outstanding period of that sentence. The Recorder did order that he be returned to custody, but unfortunately she did not specify how much of the outstanding period he should serve. However, we have before us a letter from the prison authorities at Bristol stating that by their calculation the sentence of 3 years and 6 months’ imprisonment which she imposed on the appellant will not begin to run until November 2006. That is a matter to which we shall return.

The appellant now appeals against sentence by leave of the Single Judge.

The facts giving rise to his convictions are these. On 10th November 2005 Mr David Hunt, the appellant's uncle, left his home in Malmesbury at about 9.00 a.m. He secured the property as he left. When he got back about 12.10 p.m. he discovered the door was open and some tobacco had been stolen from his home. He also discovered that his father's World War II Campaign medals had been taken from a drawer in the kitchen. Otherwise it seems the property had not been disturbed. The police were called and they discovered a witness who had seen a Vauxhall Cavalier motor car outside the house. No forensic evidence was discovered at the scene of the burglary but later in interview the appellant admitted that he had been responsible.

On 13th November 2005 75-year-old Rosemary Jubb, who walked with the aid of a stick because she suffered from arthritis, was making her way down an alleyway when she suddenly felt someone push her. The bag she was carrying was snatched from her and the assailment, who turned out to be the appellant, ran of with it. Her bus pass, her pension card, her cheque book, her Co-op card, some discount cards and also some cash were all stolen. That gave rise to the charge of theft.

On 14th November the appellant pulled into a filling station in Frampton Mansell in Gloucestershire in his Vauxhall Cavalier. He filled the car up with petrol and then drove off without attempting to pay. The registration number of the car was noted by the garage owner and passed to the police. The driver of a police car spotted the appellant's vehicle on the A433. He came up behind it, switched on his lights and sirens and indicated to the appellant to stop. However, the appellant did not stop. Instead he accelerated and entered the village of Didmartin, passing through a 30-mile an hour restricted area at about 50 miles an hour. The police gave chase and the appellant was seen to drive through another village, Petit France, at 60 to 70 miles an hour. He also overtook a number of vehicles in stretch of the road where overtaking was prohibited and reached speeds of up to 80-miles an hour.

As he approached the M4 the appellant drove through a red light at a roundabout and then went onto the motorway. On the motorway he drove at 80 miles an hour and overtook a number of vehicles on the inside as he regularly changed lanes. He then took to the hard shoulder where his speed was measured at 110 miles an hour as he continued to overtake vehicles on the inside. The appellant then suddenly swerved from the hard shoulder across into the outside lane when he noticed there were men working on the hard shoulder. At that stage a police helicopter and other patrol units joined in the chase. He continued to drive at speeds of up to 100 miles an hour and was eventually forced back onto the hard shoulder by the police and was blocked in. He turned off the motorway and down the grassy slope. His car came to a halt in bushes at the side of the motorway where he was finally arrested. When interviewed he made full admissions to the offences as well as admitting to the further four offences which he asked to have taken into consideration.

When sentencing the appellant the Recorder said that he had acted in complete disregard for the safety and feelings of others. She pointed out that he had specifically targeted his uncle and stolen medals which had great sentimental value. He then committed a despicable offence against a vulnerable old lady and had finally driven his car with complete disregard for the safety of other road users.

The grounds of appeal in this case are, first, that the sentence of 18 months' imprisonment in respect of the burglary was excessive having regard to the guidance given by this Court in the case of McInerney in relation to sentencing for offences of domestic burglary; second, that the order returning the appellant to custody to serve the outstanding part of his previous sentence was wrong in principle; and third, that the sentence was too long overall.

As regards the sentence for burglary, Mr Daymond, on behalf of the appellant, has submitted that, although he had previous convictions for offences of dishonesty, this burglary and the burglary which he asked to have taken in consideration were in fact the first offences of this kind, that is, they represented his first involvement in domestic, as opposed to non-domestic, burglary. He submitted that the items he took were of low monetary value, although he recognised that they were of considerable sentimental value, and were eventually recovered with the appellant’s assistance.

On that basis Mr Daymond submitted that the offence should be regarded as somewhere between a low-level and a standard domestic burglary committed by a first-time offender for which, in accordance with the guidelines given in McInerney, a custodial sentence of about 9 months’ imprisonment would be appropriate.

We have to say we are not wholly persuaded by that argument. This was not in fact the first domestic burglary committed by this appellant. He admitted to one previous offence of this kind which he asked to have taken into consideration. Moreover, it cannot be said that he was by any means a first-time offender. Although he had not previously tried his hand at domestic burglary, he had a significant record of offending extending to offences of obtaining by deception, burglary of non dwelling-houses, robbery and theft. The offence for which he stood to be sentenced was also aggravated by the fact that it was committed while he was unlawfully at large.

Against that, however, it has to be borne in mind that the offence was committed without any damage to the property he entered, that he volunteered information to the police about his involvement and that he took steps to assist in recovering the property. It was also accepted that the offence was one which he committed at a time when he was in desperate straits in order to obtain money to buy food.

In all the circumstances we are satisfied that a sentence of 18 months' imprisonment was somewhat too high for this offence. We would reduce the sentence to one of 12 months' imprisonment.

The order for return to custody requires separate consideration. In December 2002 the appellant was sentenced to a total of 45 months' imprisonment for offences of robbery and theft. That sentence was due to expire on 8th May 2006. He was released on licence in the ordinary way but on 19th July 2005 he was arrested for an offence of theft and on 27th July 2005 his licence was revoked by the Secretary of State. However, he remained unlawfully at large until he was arrested for other offences on 14th November after the police chase described earlier. By that time he had been unlawfully at large for 111 days. Between that date and the date of sentence he remained in custody serving a period of the earlier sentence following his recall.

It is clear from the transcript of what took place at the time of sentence that the Recorder was aware that the appellant had been recalled to prison and that her attention was drawn to the fact that the court is prohibited from passing a sentence of imprisonment which is to run consecutively to a sentence under which the offender has been released and in respect of which his licence has been revoked. However, the power to return an offender to prison under section 116 of the Powers of Criminal Courts (Sentencing) Act 2000 remained at her disposal notwithstanding the revocation of his licence. We think it is clear that the Recorder did intend to exercise her powers under that section, even if she did not state so explicitly. Unfortunately, however, the prosecution was unable to inform her of the number of days outstanding and she therefore did not specify how many days he was to serve. As a result her order was interpreted by the prison service as an order to serve the whole of the outstanding period, namely 180 days, and we agree that that probably was her intention.

We have been provided with a copy of a letter from the custody office manager at HMP Bristol explaining how the prison service understands the position. It is as follows: that he date on which the appellant would have been released under the earlier sentence was 8th May 2006, but that was put back to 27th August 2006 because of the time he spent unlawfully at large; he would then have to serve 90 of the 180 days for which he had been returned to prison by the Recorder under section 116, giving a release date of 26th November; at that point he would begin the new sentence.

This calculation gives rise to two questions: first, how does an order returning an offender to custody to serve all or part of the outstanding period of a previous sentence operate when he has already been subject to administrative recall? Secondly, when ordering an offender to be returned to prison to serve all or part of the outstanding period of a previous sentence should the judge take account of time spent in custody following administrative recall, and if so, how?

In this case it is necessary to consider the consequences of returning an offender to custody after he has been subject to administrative recall in order to assess its effect on the sentence as a whole. In the case of Sharkey [2000] 1 Cr App R(S) 541 the Court gave consideration to the question whether there was power to order an offender to be returned to custody under section 40 of the Criminal Justice Act 1991 (the predecessor of section 116 of the Powers of Criminal Courts (Sentencing) Act 2000 in a case where he had already been subject to administrative recall under section 39. The Court observed the primary purpose of administrative recall is the protection of the public whereas the purpose of an order returning the offender to custody to serve all or part of the outstanding period of his sentence is punitive. It held that the power to return an offender to custody exists even after there has been an administrative recall.

One important question which arises in the present case, however, which was not discussed in Sharkey, is how, if at all, the period that an offender would otherwise be liable to spend in custody as a result of his recall is affected by an order of the court returning him to custody to serve the outstanding balance of the sentence. The question is illustrated by the manner in which the prison service has calculated the date on which the appellant will begin to serve his latest sentence. It proposes to treat the number of days which he is liable to serve as a result of his recall as separate from and additional to the number of outstanding days which the Recorder has ordered him to serve before he begins his next sentence. In other words, if its understanding is correct he will begin to serve the outstanding part of his previous sentence pursuant to the Recorder’s order only when the whole of the period he is liable to serve as a result of his recall has elapsed.

In our view that cannot be right, however, because it overlooks the fact that, by whatever route he arrives back in custody, the offender is serving the same sentence. If he were to be detained on recall until the expiry of the original sentence, he would then have served the whole of his sentence and no period would remain outstanding. Clearly he could not be required to serve a further 180 days.

The correct position, in our view, is that, when an order is made returning an offender to prison to serve all or part of an outstanding sentence in respect of which he has already been subject to administrative recall, the order takes effect immediately and as from that date time spent in custody is to be counted as time spent serving the outstanding period of his sentence as required by the order. The next sentence then starts as soon as the offender has served the number of days prescribed in the order returning him to prison.

In the present case the Recorder's order took effect on 6th January 2006 and the 180 days outstanding from the previous sentence which the appellant was required to serve began to run from that date.

The question then arises whether any allowance should have been made for time he had already spent in custody following administrative recall. In the case of Teesdale [2003] EWCA Crim 1641, [2004] Cr App R(S) 6 this Court pointed out that, as had been decided in the earlier case of Stockler [2003] EWCA Crim 1212, [2003] 2 Cr App R(S) 54, time spent in custody following administrative recall does not automatically count against the time for which a defendant is ordered to return to prison to complete his previous sentence. Normally, therefore, it is right to make allowance for such time; otherwise the offender will be required to serve a longer period in custody than was intended by the sentencing court. Moreover, as the Court pointed out in Teesdale, in order to allow for the effect of the early release provisions it is necessary when making such an allowance to double the time spent in custody on recall to ensure that the prisoner is given full credit for that time.

That being so, we consider that allowance should be made in this case for the 51 days which the appellant spent in prison following administrative recall before the Recorder made her order on 6^th January 2006 returning him to prison. The right way to do that, as indicated by the authorities to which we have referred, is to deduct from the outstanding time that he would otherwise have been ordered to serve twice the number of days spent in prison following administrative recall.

It follows that in the present case 102 days should be deducted from the outstanding period of 180 days, leaving a balance to be served of 78 days. We therefore vary the order of the Recorder by directing that the appellant be returned to prison to serve 78 days of the outstanding period of his previous sentence before beginning to serve the sentence passed in respect of the latest offences.

The third ground of appeal in this case was that the total length of the sentence imposed by the Recorder, namely three-and-a-half years’ imprisonment following the outstanding 180 days of the previous sentence, was too long overall. However, we have already indicated that we propose to reduce the sentence imposed in respect of the burglary from 18 months to 12 months and the appellant will receive credit for time already spent in custody following his recall. In those circumstances we are satisfied that the sentence taken as a whole does no more than properly reflect the extent of his offending and that no further reduction would be justified.

In those circumstances the sentence passed by the Recorder will be quashed and there will be substituted for it a sentence of 3 years' imprisonment to be served after serving 78 days of the sentence imposed on the previous occasion. To that extent this appeal is allowed.

MR DAYMOND: For the sake of clarity, do you direct that the 78 days commence from 6th January?

LORD JUSTICE MOORE-BICK: Yes, that is the intention. Just confirm to me, if you would, the order we are proposing to make is the correct one as you understand it as well. I do not want there to be any mistake second time round.

MR DAYMOND: It is correct.