Wolstenholme, R v

J U D G M E N T

Friday 4 September 2009

LORD JUSTICE RIX: I shall ask Mr Justice Collins to give the judgment of the court.

MR JUSTICE COLLINS:

1. Since the appeal in this case does not concern the length of the total sentences but the way in which they were structured, it is not necessary to go into any detail of the offending. Suffice it to say that the applicant pleaded guilty to one count of being concerned in the supply of a Class A drug (cocaine), for which he received 18 months' detention in a young offender institution; to a count of possession of a small quantity of cannabis, for which he received a concurrent sentence of one month's detention; and to two counts of having a bladed article, for which he received three months' detention, concurrent with each other, but consecutive to the sentence for being concerned in the supply of cocaine. The applicant's applications for an extension of time (114 days) in which to apply for leave to appeal against sentence, and for leave to appeal against sentence have been referred to the full court by the Registrar.

2. The offences arose from a police raid on premises at which the applicant was with a number of other co-defendants and in which cocaine to an unadulterated value of £700 was found. Its street value was in the region £2,500. Accordingly, 18 months' imprisonment is an entirely appropriate sentence.

3. Two knives were found in the applicant's car. The consecutive sentence of three months' detention in a young offender institution was an equally appropriate sentence.

4. The problem has arisen because the applicant was considered to be eligible for home detention curfew but because the sentences were imposed in the natural order of the greater sentence coming before the lesser, he finds himself in a position where he is unable to take advantage of the home detention curfew. That arises because the sentence of under twelve months' detention is dealt with under the Criminal Justice Act 1991, and a sentence of twelve months or more detention is dealt with under the 2003 Act. It arises because of the Criminal Justice Act 2003 (Commencement No 8 and Transitional and Saving Provisions) Order 2005, which provides that the coming into force of the relevant sections of the 2003 Act and the repeal of the equally relevant sections of the 1991 Act are of no effect in relation to any sentence of imprisonment of less than twelve months, whether or not such a sentence is imposed to run concurrently or consecutively with another sentence. Accordingly, the 1991 Act applies to all sentences of under twelve months.

5. The result of that is that a lesser sentence under twelve months, if imposed after the greater sentence, results in the time at which home detention curfew can be granted being at the relevant part of that sentence, not of the aggregate. The position therefore is that where a court imposes consecutive sentences, one of which is over and the other of which is under twelve months, unless there is to be a disadvantage to the defendant, the lesser period (under twelve months) should come first. That is no doubt contrary to the approach that most judges would naturally adopt. This is a snare which must be appreciated and be considered, and must be brought to the judge's attention in each case where he is minded to pass such consecutive sentences. It is essential that the lesser sentence comes first, otherwise the defendant will be prejudiced as to the time at which he can be released upon licence or on home detention curfew.

6. In the circumstances of this case we grant leave to appeal. All that we need to do is to reverse the order of the sentences, to make the three months come first and the 18 months come second. That we do, and we allow the appeal accordingly.