Phillips, R. v

MR JUSTICE KING: These appeals concern recalled prisoners sentenced for further offences.

When an offender commits a further offence when out in the community on licence in respect of an existing sentence and is then recalled to prison with his licence revoked, two consequences follow, material to the present appeals, as a result of the applicable statutory provisions. One is to the distinct benefit of the offender. The other has the opposite effect.

First, any sentence passed for the new offence cannot be made to run consecutively to the existing sentence. This is the effect of section 265 of the Criminal Justice Act 2003. Nor can it be artificially inflated beyond the sentence appropriate to the seriousness of the offending in order to ensure the offender serves an additional period in custody over and above the period of recall (see R v Costello [2010] EWCA Crim 371). This has been described elsewhere as an "unjust anomaly" since the court does ordinarily have the power to impose a consecutive sentence to an existing sentence still being served.

Secondly, any time spent on remand in custody in connection with the further offence does not count as time served to be deducted from any sentence when it is passed, if that period on remand coincides with detention on recall on an existing sentence. There can be no double counting, a day counts as time served (a) in relation to one sentence; and (b) only once in relation to that sentence.

This is the effect of section 240ZA of the Criminal Justice Act 2003 which came into force on 3 December 2012, and in particular subsections (4) and (5). That section has had the effect of removing the question of credit against sentence of time spent on remand from the discretion of the court, replacing it with statutory principles of calculation of time served, one of which is that which we have just rehearsed. The basic rule is that the number of days for which the offender has been remanded in custody in connection with the offence will count as time served (see subsection (3)) but this is subject to the exception we have identified arising out of subsections (4) and(5).

These appeals raise common issues arising out of these provisions. They each seek to rely upon delay in sentencing the particular offender which has had the effect that time spent on remand has not counted as time served and in at least one of the cases in practical terms has meant that the offender was detained in respect of the new sentence beyond the release date of his existing sentence. These appellants each seek to argue that the sentencing court ought to have reduced the otherwise appropriate sentence to take account of this delay and the failure to do so, or in one of the cases a failure to do so sufficiently, has rendered the sentence wrong in principle or manifestly excessive.

This court has already considered the question arising, namely whether the sentencing court has any discretion to reduce an otherwise appropriate sentence to take account of time spent in custody awaiting sentence which coincides with time on recall and which will now not count as time served. The answer given by this court in R v Kerrigan & Walker [2014] EWCA Crim 2348 was that the judge does retain "the discretion to do justice on the particular facts of a case, for example in the case of excessive delay, and may therefore reduce an otherwise appropriate sentence accordingly" (see the principles set out in paragraph 56 of Kerrigan and in particular the principle at subparagraph (viii)).

However, the observations of this court in Kerrigan make clear that this is very much a residual general discretion to correct any perceived injustice. It cannot be used as simply a device to run a coach and horses through the statutory provisions to which we have referred. As Mr Mably, on behalf of the Crown ,has submitted, Parliament's intention is clear: time spent on remand for an offence does not count as time served as part of a sentence if it coincides with time spent in custody on recall. An offender is not entitled, and should not expect, to have his sentence discounted in such circumstances (see again the observations of this court in Kerrigan at paragraph 57).

The court in Kerrigan at paragraphs 52 to 54 did consider the impact in this context of Article 6 of the European Convention guaranteeing the right to a hearing within a reasonable time. What this court there said, based on high authority, was that in any case in which it is said the reasonable time requirement has been violated, the first step is to consider the period of time which has elapsed. Unless that period is one which on its face and without more gives grounds for real concern, it is almost certainly unnecessary to go further. The Convention is directed not to departures from the ideal but to infringements of basic human rights. The threshold before a violation is established is a high one. Moreover, the reasonable time requirement is designed to protect prolonged and unreasonable periods of delay that cause an accused person to remain too long in a state of uncertainty about their fate, rather than to provide a means through which to obtain by the back door credit for time spent in custody on recall.

However, this court also made clear that, all this said, delay may be of relevance quite apart from whether or not a breach of the Convention can be established, as part of the broader question of what a just sentence is when is person is belatedly sentenced. The court referred to the observations of the then Vice President Hughes LJ in Attorney General's Reference (No 79 of 2009) [2010] EWCA Crim 338 at paragraph 19.

In keeping with those sentiments, an allowance was made by this court in R v Shaw [2011] EWCA Crim 98 to reflect a delay of 2 years in bringing a case to trial and a similar approach was adopted by this court in R v Wood [2011] EWCA Crim 1854. The allowance made in Shaw was one of 6 months. In neither case was the key to the reduction that the appellant had been denied credit for time served which might otherwise have been applicable. The point being made in Shaw for example (see Leveson LJ paragraph 41) was that the judge below had paid too little attention to the inevitable anxiety that accompanies the uncertainty of awaiting sentence, and reference is made to the importance of adhering to Convention rights.

With these principles in mind we turn to the respective appeals. It is convenient to begin first with that of Phillips. His application for leave has been referred to the full court by the Registrar who granted a representation order for counsel. Mr Prior has appeared before us. Phillips is some 21 years of age. The application relates to a sentence passed in the Crown Court at Leicester by His Honour Judge Hammond on 5 December 2014 in respect of one offence of affray and one offence of damaging property. The applicant and his co-accused had previously pleaded guilty to these offences on 16 October 2014 again in the Crown Court. In the case of Phillips a sentence of 6 months' imprisonment was passed upon the affray, with 2 months concurrent for the criminal damage. In respect of the co-accused, the sentence passed on the affray was one of 12 months.

The offences related to events in the television room on 1 August 2013 in the Young Offender Institution where the appellant and his co-accused were serving existing sentences and in which they barricaded themselves in for 4 hours and damaged the room, causing some £3,000 worth of damage. During the incident a fire extinguisher was used to fire projectiles at the prison staff. Other prisoners were encouraged to join in. One of the co-accused defecated, the product of which was thrown on sticks at the prison staff by the co-accused. The appellant's mitigation related in part to his being upset at being unable to attend his grandfather's funeral.

In the appellant's case, he was in custody on recall in the following circumstances. On 11 February 2007, he had been sentenced to 4 years custody in respect of three offences of robbery. The sentence end date was 12 December 2014. In the circumstances we are about to outline, Mr Prior has emphasised that he has, in effect, served in custody the entirety of that sentence. It arises in this way. On 31 December 2012, the appellant was released on licence from that sentence. In early January 2013, the appellant was accused of a further offence and was recalled on his licence. On 10 July 2013, he was acquitted of that alleged offence. However, he remained in custody pursuant to the recall. We are told that he was awaiting a decision as to whether his recall should be terminated when the index offence took place on 1 August and once the index offence had taken place he was refused parole due to the ongoing investigation. The appellant was not interviewed in respect of these offences until 2 January 2014. He was not charged until 27 August 2014. As we have indicated, he pleaded guilty in the Crown Court on 20 October and was finally sentenced on 5 December.

In passing sentence, the judge indicated that in the appellant's case the proper sentence would have been "1 year from today" but in view of the mitigation and "the difficulty about licence" he was going to reduce the appellant's sentence to one of 6 months when in fact it should have been one of 12 months.

It is clear from the judge's sentencing remarks that he in fact did reduce the otherwise appropriate sentence to take account of the time spent on remand on licence recall which would not count as time served having regard to what was perceived by the judge as the undue delay in the investigation and charging of the appellant, and when but for the delay the appellant would by virtue of section 265 have been serving his sentence alongside his existing sentence. In his sentencing remarks at page 5H to 6C the judge referred to the submissions made on the appellant's behalf as raising "an interesting point" in these terms:

Mr Prior, before us, has emphasised the view of the judge over this delay. He emphasised that the appellant had to wait 5 months to be interviewed, was not charged until 13 months after the offence and did not appear for sentence until 16 months after the offence. None of the delay, it is said, was his fault.

It is of note to observe as an example of how the statutory provisions apply that in the case of the co-accused Finnigan, he had not been on licence recall. In his case the 12 month sentence on the affray was ordered to run consecutively to his present sentence because he was serving a sentence when the affray took place. In other words, he had not been able to take advantage of the anomaly represented by section 265 of the 2003 Act.

Notwithstanding the discount the judge did make and notwithstanding it is conceded that the sentence of 6 months was less than might have been expected, this appellant now seeks to appeal on the ground that that discount was insufficient. It is submitted that the discount did not reflect the time spent in custody between January and June 2013 in respect of recall for that separate offence which was not proven. It is also put in the written grounds that the sentence fails sufficiently to "give effect to section 265 of the 2003 Act".

The argument of Mr Prior runs as follows. Had the appellant been dealt with within a reasonable time from the date of the offence, he would have been sentenced at the latest by the end of January 2014. In such a case, thanks to section 265, he would have served his sentence for this offence concurrently with his recall and would have served it in full, even if he had been given 12 months like his co-accused, by the end date of the sentence for which he had been recalled: 12 December 2014. He would have been released come what may on 12 December 2014, whereas because sentence was not imposed until 5 December 2014 he will be detained serving that sentence beyond 12 December. In other words, the complaint is made that because of inexcusable delay the appellant has been deprived of the benefit of section 265.

In addition, as we have indicated, Mr Prior seeks to take his argument a step further. He complains that the appellant received no days to count against the current offence as a result of the recall period between January and June 2013. It is, so the argument runs, highly likely the appellant would have been released from recall given the acquittal on the matter for which he was recalled. His recall continued for no reason other than the commission of the index offence. In these circumstances, the earlier recall time should have been fully taken into account.

On the basis of these submissions, the sentence passed upon the appellant should have been designed to ensure his release at the end of his current period of recall: 12 December 2014. The appropriately reduced sentence would have been a purely nominal one expressed in days.

We cannot accept these submissions. They ignore the fact that what was identified by this court in Kerrigan was a residual discretion in the court to make allowance for time spent on remand if this court considers this is required to correct an injustice in favour of the defendant. The court is not obliged to exercise that discretion. A discretion by definition requires a court to exercise an assessment of the facts and to make a judgment as to what is required. The discretion does not involve a built-in formula which demands that the effects of the application of section 240ZA are fully mitigated. Far from it. The submissions made on behalf of the appellant reflect, in our judgment, a misplaced assumption of entitlement (see further the recent decision of this court in R v Tolbert, 3 February 2015).

In this case, the judge did exercise his discretion to reduce the sentence by 6 months having regard to his assessment of delay and the effects it had had upon the appellant. Some might say he gave a generous discount in the circumstances. One thing is certain, however: this is not an exercise of discretion with which this court should interfere. No discount could arguably be justified in any event on the grounds that the applicant had previously spent time on remand in respect of an unrelated offence of which he was acquitted. This is a factor which on any view was wholly irrelevant to the sentencing exercise for the current offence.

Given this case has been referred to us as an application, we grant leave to appeal. For the reasons we have indicated, however, we dismiss the appeal.

We turn then to the cases of O'Brien and Kalychurn. These appeals relate to a sentence of 8 years' imprisonment imposed on each on 18 August 2014 in the Crown Court at Kingston before His Honour Judge Jones following a guilty plea on 8 January 2014 on a count alleging conspiracy to commit aggravated burglary. At the time of sentencing the judge dealt also with a co-accused and in respect of the co-accused, Rawlings and Worrell, they too were sentenced to 8 years' imprisonment. The judge in the cases of those two co-accused, and the appellants, found no basis upon which to reduce their respective culpabilities as against each other. A further co-accused, Raine, was sentenced to 7 years.

The background was this. Mr O'Brien is aged 26. Kalychurn is aged 24. On 5 September 2013, together with the three co-accused they conspired to commit a serious offence of aggravated burglary relating to a smash and grab raid on a jewellery store at a shopping centre in Stratford, east London. There has been no submission that the sentence of 8 years was other than an appropriate sentence in the light of the circumstances of the offending.

The appellants and all the co-accused were arrested the same day. All were remanded in custody following their arrest. At the time of the offending both appellants O'Brien and Kalychurn were on licence in respect of sentences imposed for previous offending. Following their arrest, their licences were revoked and they were both recalled to prison.

At a preliminary hearing on 20 September 2013 the defendants were initially charged with a conspiracy to rob. Applications were made to dismiss, which were heard on 8 January 2014. On that occasion the Crown did not pursue the robbery matter. The indictment was amended to indict the further charge of conspiracy to commit burglary.

Following the dismissal of applications to dismiss, the appellants and all the co-defendants entered guilty pleas to the burglary conspiracy. None were sentenced immediately. The chronology shows there was a period of some 7 months between plea and sentence. The reason was that the sentencing of O'Brien and Kalychurn and the other co-accused was adjourned pending the outcome of further proceedings involving one of the co-accused, Rawlings, on a robbery charge. It was following the conclusion of that trial of Rawlings that all the defendants, including the appellants, were sentenced when they were, in respect of all matters.

It appears that Ms Shotton on behalf of O'Brien made an application on 8 January for her client to be sentenced the same day as his plea or as soon as reasonable thereafter. It was submitted that his sentence should not be delayed until the conclusion of the robbery trial as that involved only the one co-accused. It was not listed for a PCMH until 13 January with an anticipated trial date in April.

It was submitted that waiting until the conclusion of the Rawlings trial was unfair as O'Brien was subject to recall, so that none of the time spent in custody would count towards any sentence subsequently passed. At subsequent hearings the sentencing hearing was further adjourned owing to further delays in the trial of Rawlings. We understand that unsuccessful applications were made for O'Brien to be sentenced in the absence of Rawlings in the light of the continuing delay.

By the time of the sentencing hearing of 18 August, O'Brien and Kalychurn had spent some 11~months and almost 2 weeks in custody subject to recall, of which 7 months and 1 week had been spent awaiting sentence following his plea. Before the judge, submissions were made on behalf of both appellants that some acknowledgement should be made in sentence to take account of the lapse of time between the commission of the offence and sentence. None of the delays had been of the appellants' making or related to the indictment with which they were charged. It was submitted that to do otherwise would amount to a double punishment, the sentences being aggravated by the fact of the appellants' previous convictions and the fact of being on licence at the time of the offence, and then was being further aggravated by the fact each had spent 7 months and 1 week awaiting sentence, none of which could be credited towards sentence. It was further submitted that this would moreover lead to a disparity between the defendants as to the actual time spent in custody for this offence and a justified sense of grievance. Reliance was also placed on the lapse of time factor set out in the material sentencing guideline for burglary which allowed in certain circumstances for the sentences to reflect "lapse of time which is not the fault of the offender".

These submissions were rejected by the judge. He rejected them in express terms:

It is has been submitted by the defence that the judge was wrong not to have done so. On behalf of both appellants, Ms Shotton puts it in terms that the judge erred in not giving credit for the 7 months and 1 week that the appellants spent in custody following the guilty pleas awaiting sentence. Ms Shotton, in concise and careful submissions, has in effect repeated the unsuccessful submissions made before the judge below. Particular reference has been made to disparity. To quote the written submissions on behalf of Kalychurn: the appellant is left with a sense of legitimate grievance in that he was given the same custodial sentence as his co-defendant, Wayne Worrell, but whilst Wayne Worrell's sentence takes into account the time he has served, this will not apply to the appellant which means that the appellant will serve a longer sentence for the same offence.

This is referred to in the grounds of appeal as an unintended effect which means the sentence does not reflect the fact that Wayne Worrell had been sentenced on the same basis of culpability in respect of the same police operation.

We have been unable to accept these submissions as giving rise to any ground upon which these appeals can be allowed. As Mr Mably on behalf of the Crown submitted, whilst there is an obligation that criminal proceedings are concluded within a reasonable time and an expectation that investigations and proceedings will not be subject to excessive delay, this does not involve an obligation on prosecutors or courts to ensure that prisoners subject to recall are sentenced for further offences at a time which ensures that the new sentence is served at the same time as the existing sentence. There is no principled reason why this should be. To suggest otherwise would be to adopt an unprincipled approach that the court should regard themselves under an obligation to mitigate the effects of a statutory scheme on the basis it is unfair to the particular offender. This all ignores the primacy of Parliament's intention to introduce the statutory scheme.

On the face of it, the delay in this case between the commission of the offence and sentence, just over 11 months and including 7 months between plea and sentence, was not obviously excessive and, in our judgment, was not such as to amount to a breach of the reasonable time requirement guaranteed by Article 6. When considering the exercise of the residual discretion of the court identified in Kerrigan, this delay cannot be identified as excessive. It may have been possible, of course, for the appellants to have been sentenced at an earlier stage but it was for legitimate and understandable reasons that the judge decided it was more appropriate to sentence all defendants together in respect of all matters they faced.

The situation in which the appellants found themselves, was in truth a situation of their own making. Having been released on licence they each committed a further serious offence which inevitably compelled the imposition of a significance custodial sentence. We agree with the submission of the Crown, that at all times the possible consequences of re-offending on licence, including recall to prison, and to the potential effect of the provisions of the Criminal Justice Act 2003, were clear and obvious.

On proper analysis, there is nothing in the disparity point sought to be raised as a source of injustice. There is no injustice here. The reason why Worrell was treated differently from the appellants was that unlike the appellants he was not on recall on licence, and he was not serving an existing sentence. There is no unfairness in the application of the statutory scheme which distinguishes between these two different situations. The appellants were in a worse situation because of their particular circumstances of having committed this further offence while on licence. This did not apply to Worrell. This is not a case in any event where the factors referred to in the sentencing guidelines could possibly merit the intervention of this court.

For all these reasons, the judge cannot be faulted for not exercising the discretion we have identified. He cannot be faulted for failing to identify an injustice which required to be corrected because in truth here there was no such injustice.

For all these reasons these appeals are also dismissed.