Case No: 200504638/A2
Neutral Citation Number: [2006] EWCA Crim 1140
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM The Crown Court Oxford
His Honour Judge Morton Jack
T20050045
Royal Courts of Justice
Strand, London, WC2A 2LL

Wednesday 17 May 2006
Before :

LORD JUSTICE WALLER
MR JUSTICE GRIGSON
and
HIS HONOUR JUDGE RADFORD
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Between :

	R	Respondent	
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	Mark Clive Drewett	Appellant	

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(Transcript of the Handed Down Judgment of
Smith Bernal Wordwave Limited, 190 Fleet Street
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Tony McGeorge (instructed by CPS) for the Respondent
Ian Jobling (instructed by MacNab Clarke, Solicitors) for the Appellant

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Judgment

His Honour Judge Radford : 

1.	On the 7th July 2005, at the Crown Court at Oxford, on the day the case was listed for trial, the appellant pleaded guilty on re-arraignment to an offence of possessing crack cocaine, a drug of class A, with intent to supply. On the 28th July 2005 he was sentenced by His Honour Judge Morton Jack to 8 yrs and 26 days imprisonment:  ancillary orders for forfeiture and destruction of the drugs and confiscation were made. 
2.	On the 23rd of February 2006, we stated that we would be allowing this appeal to such extent and for such reasons as would later be handed down in writing.  We now set out our judgement on the appeal and our reasons for it.
Facts
3.	On 16th February 2005 police officers were on the look out for a blue VW Golf motor car, which they suspected was being used in connection with drug dealing. It was seen being driven around with the appellant as a passenger. Later it was driven to a car park where police officers found it parked. They kept it under observation and saw 2 men go to the car, one was the appellant. He got into the driver’s seat. Both men were arrested. When the appellant was searched he was found to be in possession of £320 in cash.  His mobile phone rang 21 times whilst he and the car were being searched. The appellant was taken to the police station. He was searched again and 6 wraps of crack cocaine (as pure cocaine weighing 1.16 grams) were found between the cheeks of his bottom. The appellant claimed that the substances were heroin and for his own use.  He was later interviewed. He declined to answer the officers’ questions but did produce a prepared statement in which he said he was not involved in the commercial sale of drugs, that the drugs found on him were for his own use and that the £320 in his possession comprised the proceeds of money owed to him from a previous employer, Christmas money and a recently cashed Giro cheque.
Antecedents
4.	The appellant was aged 31 at the time of sentence, having been born on the 2nd December 1973. He had a total of 25 previous convictions for which he had appeared in court on 8 separate occasions.  Of particular relevance were his previous convictions for supplying Class A Drugs. On the 6th November 1995 he was convicted at Oxford Crown Court of 3 offences of supplying crack cocaine and sentenced to a total of 18 months imprisonment, and on the 11th June 2001, again at the Oxford Crown Court, the appellant was sentenced to a total of 5 years imprisonment concurrent for offences of possessing a controlled drug (namely crack cocaine) with intent to supply and conspiring to possess a controlled drug of Class A (heroin) with intent to supply.
Pre-Sentence Report
5.	There was a pre-sentence report before the judge. It informed him that:
(a)	The appellant had been released on licence (for the second time) from his previous custodial sentences on the 24th December 2004 and 
(b)	the appellant’s explanation for his re-offending was that he had been coerced by threats of violence into dealing in drugs again by people to whom he owed money for drugs  purchased for his own use.  The author noted that as a result of his further offending the appellant had been recalled to prison for breach of his licence conditions on the 28th. February and would not now be released from his previous sentences until those sentences expired on the 26th March 2006.  The period of time between 28th February 2005 and 26th March 2006, as the judge was to observe when passing sentence was 1 year and 26 days.

Mitigation
6.	In  mitigation the appellant’s counsel, Mr Jobling, accepted, as he accepted before us, that as the offence for which the appellant fell to be sentenced was a Class A drugs trafficking offence committed after the 30th September 1997 and that as the appellant had been convicted sequentially of 2 other drug trafficking offences, the provisions of section 110 of the Powers of Criminal Courts (Sentencing) Act 2000 (the 2000 Act) applied and that, save for such credit for the appellant’s very late plea of guilty as might be given pursuant to section 152(3) of the same Act, the judge had to pass a minimum Sentence of 7 years imprisonment, unless he concluded that, pursuant to the provisions of section 110(2) of the Act,  there were particular circumstances which related to any of the relevant drug trafficking offences or the appellant that would make it unjust in all the circumstances to pass a minimum sentence of 7 years imprisonment.
Section 110 of the 2000 Act
(1)  This section applies where

(a)  a person is convicted of a Class A drug trafficking offence committed after 30th September 1997.         
(b) at the time when the offence was committed, he was 18 or over and had been convicted in any part of the UK of 2 other Class A drug trafficking offences and 
(c) one of these other offences was committed after he had been convicted of the offence      
(2) The Court shall impose …. an appropriate custodial sentence of at least 7 years except where the court is of the opinion that there are particular circumstances which
(a) relate to any of the offences or to the offender: and 
(b) would make it unjust to do so in all the circumstances”.
7.	It is also of relevance to note, but unnecessary to recite, that Section 152 (3) of the same Act provided that the sentencing judge could reduce the otherwise minimum sentence of 7 years imprisonment to not less that 80 percent of the 7 year term where the defendant has pleaded guilty to the offence.
Sentencing Observations
8.	The judge concluded that there were no particular circumstances, pursuant to Section 110 (2) of the 2000 Act, for not operating the minimum sentence provisions (a conclusion which is not sought to be criticised before this court).  He went on though to state that he took account of the fact that the appellant was only 31 years old and then said, and we quote his words from the transcript, 
“on the other hand I must have regard to your serious criminal record and that your plea of guilty was at the last moment. All in all, there is no good reason for imposing more than the statutory minimum Parliament decreed”
If the judge had ended at that moment the sentence would have been one of 7 years imprisonment. However, he went on to say that another problem arose. He referred to the fact that the appellant had been recalled for breach of his licence and would not be released from his previous custodial sentence until 26th March 2006, a period of 1 year 26 days. The judge then observed that:-

“if the instant 7 year sentence runs concurrently with your recall the effect will be that the minimum in your case is less than 7 years. Put another way, it would mean that because you had been recalled for breach of your licence under sentence for another matter entirely you would be in a better position than a defendant who was being sentenced today without the complication of recall.”
The judge concluded with these words,
“That seems to me to be contrary to the intention of Parliament and to give effect to the 7 year minimum it is necessary to pass a sentence upon you of 8 years 26 days for the offence, and that is the sentence of this court.”
Grounds of Appeal
9.	In the grounds of appeal two contentions are advanced:- 
(1)	that having determined that 7 years was the appropriate sentence applying the provisions of section 110 of the 2000 Act, it was wrong in principle for the judge then to have passed a longer sentence because the appellant had been recalled for breach of his licence upon which terms he had been released from custody in respect of his previous sentences and
(2)	the sentence was excessive having regard to the fact that it had been open to the judge to have reduced the 7 years minimum term to up to 80 per cent of that period, by giving the appellant appropriate credit for his plea of guilty, in accordance with the provisions of S.152 (3) of the 2000 Act.

The Sentence of 8 year and 26 days:
10.	We are of the view that the judge’s decision to impose a sentence of 8 years and 26 days was wrong in principle. There is in our judgement nothing in the wording of the relevant provisions contained in the 2000 Act which enabled the judge to arrive at such a construction of the statute. Furthermore, we know of no situation where this court has approved the conclusion that the appropriate commensurate sentence can or should be increased because the defendant prior to sentence had been recalled to custody by the Secretary of State on the recommendation of the Parole Board because of the breach of the terms of the licence upon which he had been released from a previous custodial sentence. That does not mean that the judge could not have addressed the question of ordering the recall of the appellant to custody in respect of some or all of the period of his previous 5 year custodial sentence outstanding at the date of his fresh offence pursuant to the provisions of Section 116 of the 2000 Act. We agree with the submissions made to us both by counsel for the appellant and counsel for the respondent that such a course was open to him. However, as this court made clear in the case of R v Taylor (1998) (Ct. App. R. (5) 312), before making a decision as to recall pursuant to section 116 of the 2000 Act the sentencing judge should decide first what is the appropriate sentence for the new offence, so that it received the sentence it merited. It is clear that the learned judge’s view was that the fresh offence merited the statutory minimum sentence of 7 years imprisonment no less and, except for the addition of the licence recall period, no more. Save for the question of credit for the plea of guilty, a sentence of 7 years is entirely appropriate.
Credit for Guilty Plea
11.	The appellant only tended his plea of guilty upon re – arraignment on the day of trial. Given that fact, and given that the maximum in credit allowable against an otherwise mandatory minimum sentence of 7 years imprisonment was, pursuant to section 152(3) of the 2000 Act, at most 20 per cent, the resonance in mitigation of sentence available on this ground was extremely limited. It is not clear from the learned judge’s sentencing observations as to what extent if any he was aware of the provisions of Section 152 (3). We were told that it was not referred to by Counsel during the sentencing process.  It would have been better if the judge had referred to this provision when passing sentence and spelt out more fully than he did as to why, despite the plea of guilty, he was not proposing to reduce the otherwise appropriate sentence of 7 years imprisonment. However, the judge did refer to the appellant having pleaded guilty at the last moment in arriving at his conclusion that “all in all, there is no good reason for imposing more than the statutory minimum Parliament has decreed”. We conclude that the judge took into account the extremely limited credit for the late plea in reaching his decision as to the overall effect of aggravating and mitigating factors. We are of the view that he was entitled to take that course and that a sentence of 7 years imprisonment was not and is not either wrong in principle or manifestly excessive. We would propose therefore to quash the sentence of 8 years and 26 days and (subject to what we say below) substitute for it a sentence of 7 years imprisonment for the offence committed on the 16th February 2005. 
Section 11(3) Criminal Appeal Act 1968.
12.	However, as was conceded by Counsel for the appellant, it is open to this court under the powers available to it under Section 11 (3) of the Criminal Appeal Act 1968, additionally to consider making an order for the appellant’s recall to custody under the provisions of section 116 of the 2000 Act. We now turn to consider these statutory provisions. Before doing so, we note that it would not have been open to the judge (nor is it open to us) to have ordered that the 7 years’ sentence of imprisonment should run consecutively to the period of the appellant’s administrative recall to custody for breach of the licence provisions under which he had been released from his previous concurrent sentences (see R v Lauren [2001] Ct. App. R (5) 65 and R v Cawthorn [2001] Ct. App. R. (5) 136)  
13.	This court has power pursuant to section 11 (3) of the Criminal Appeal Act 1968 “if it considers that the appellant should be sentenced differently for an offence for which he was dealt with by the court below to (a) quash any sentence or order which is the subject of the appeal and (b) in place of it to pass such sentence or make such order as (it) thinks appropriate for the case and as the court below had power to pass or make when dealing with him for the offence” so long as, of course “taking the case as a whole, the appellant is not more severely dealt with on appeal than he was dealt with by the court below”
14.	Section 116 of the 2000 Act reads:
(1)   “This section applies to a person if
(a)	he has been serving a determinate sentence of imprisonment which he began serving on or after 1st of October 1992;
(b)	N/A.
(c)	he is released under Part 11 of the Criminal Justice Act 1991 (early release of  prisoners);
(d)	before the date on which he would (but for his release) have served his sentence in full, he commits an offence punishable with imprisonment (“the new offence”); and
(e)	whether before or after that date, he is convicted of the new offence

(2)	“Subject to subsection (3) below, the court by or before which a person to whom this section applies is convicted of the new offence may, whether or not it passes any other sentence on him, order him to be returned to prison for the whole or any part of the period which
(a)	begins with the date of the order: and
(b)	is equal in length to the period between the date on which the new offence was committed and the date mentioned in sub – section (1) (c) above”
It would seem that pursuant to these provisions the maximum permissible period of return to custody of the appellant pursuant to the provisions of section 116 would have been for a period equal in length to the period between the date of the new offence (the 16th February 2005) and the expiry date of the sentence namely the 26th March 2006.
Section 116 of the 2000 Act and the Criminal Justice Act 2003 (the 2003 Act)
15.	It would be of relevance to the outcome of the appeal if the sentencing judge had considered whether to apply the provisions of section 116 of the 2000 Act and had decided in his discretion not to do so. We are satisfied that this was not the case.  From what we have been very properly told by the appellant’s counsel, Mr Jobling, it seems that there may have been a misapprehension as to the applicability to the case of the provisions of the 2003 Act.  We are satisfied that although by reason of the provisions of Section 332 and Schedule 37 of the 2003 Act, Section 116 of the 2000 Act has been repealed, this did not and does not apply if the offence for which the defendant falls to be sentenced occurred before the 4th of April 2005 [see the Criminal Justice Act 2003 (Commencement No8 and Transitional and Saving Provisions) Order 2005 (S.1. 2005 No 950) Schedule 2 para 29]. Consequently, as the offence for which the appellant was to be sentenced was committed on the 16th February 2005 the provisions of Section 116 of the 2000 Act continue to apply.
Section 116 return to custody
16.	It is in our view open therefore to this court to order the return to custody of the appellant for such unexpired part of his previous concurrent 5 year sentences as is just and appropriate. Under the provisions of Section 116 (6) (b) of the 2000 Act, this court can direct that the period of such return to custody should “be served before and be followed by, or be served concurrently with the sentence imposed for the new offence” i.e. the 7 year sentence. In determining whether to exercise the power available under Section 116 however it is necessary for this court to have regard to the principles laid down in the case of R v Taylor (supra) and, if making an order for return to custody for a period to be served before the new sentence, make the appropriate allowance for time spent by the appellant in custody following administrative recall unless such time will in any event be credited against the sentence for the new offence(s).
Principles for exercise of an order for return to custody under Section 116
17.	In deciding whether to exercise the power to order a return to custody pursuant to section 116 the court is not precluded from making such an order because the appellant’s recall to custody had already occurred (see R v Sharkey supra).However, before doing so it must have regard “first to the nature and extent of any progress made by the offender since his release second, the nature and gravity of the new offence or offences and third, the totality of the new sentence and order for return.” (see R v Taylor supra)   In this case, as the judge observed, whilst progress was made whilst the appellant was in custody, little progress was made whilst he was on release on licence. Furthermore, the nature of the fresh offence is entirely similar to the nature of the offences for the sentences for which the liability to a return to custody arises.  Additionally, the appellant was only on licence release from the 24th December 2004 to the 16th February 2005 before he committed the fresh offence, in itself a serious offence entailing liability to a mandatory 7 year sentence. It seems to us that it would be in no way unjust to order the appellant to return to custody to serve first an appropriate part of the unexpired portion of the previously imposed concurrent 5 year sentences before he served the 7 year sentence for the fresh offence. That approach was not one in reality resisted in the written and oral submissions made on the appellant’s behalf. The point most clearly taken on the appellant’s behalf was that in the calculation of the appropriate period for return to custody under Section.116 account should be taken of the time spent by the appellant in prison following recall until sentence - 150 days (i.e. from 28th February 2005 to the 28th July 2005). To that issue we now turn.
Credit for period of recall from licence
18.	In the course of argument, we referred Counsel to the decisions of this court in R v Sharkey (supra), R v Stocker (2003) 2 Ct App R (s) 53 and R v Teasdale (2004) 1 Ct. App. R. (s) 6. It is clear from the latter two decisions of this court – which applied the approach of this court to this issue as adumbrated in R v Sharkey – that unless the appellant would receive credit for the 150 days previously referred to in respect of the period to be served of the 7 year sentence that he would have to serve, allowance should be made for this period in calculating the period of return to custody pursuant to Section 116. Any such allowance would require doubling the number of days so served in the case of a short term sentence or adding a third to the number of days in the case of a long term sentence (i.e. one for 4 years or more). Both counsel agreed before us that this calculation in this case amounted to 225 days. It was agreed by counsel and we so find that unless the 150 days was to count as against the fresh 7 year sentence then it must be deducted from the number of days ordered to be served under Section 116.
19.	In the course of argument, we raised with counsel whether in fact the appellant would receive credit for the 150 days as against  the 7 year sentence as for the self – same period he was on remand awaiting trial for his fresh offence. We drew attention to the words of Section67 of the Criminal Justice Act 1967, as amended which provided that  “the length of any sentence of imprisonment imposed on an offender by a court shall be treated as reduced by any relevant period” and that “relevant period” included (b) any period during which he was in custody –
(i)	by reason only of having been committed to custody by an order of the court made in connection with any proceedings relating to that sentence or the offence for which it was passed or any proceedings from which those proceedings arise or
(ii)	by reason of his having been so committed and having been concurrently detained otherwise than by order of the court…..”
We invited submissions as to whether because as from 28th February 2005 until sentence on 28th July 2005 the appellant was in custody both on remand and because he was being “concurrently detained” following his administrative recall at the behest of the Secretary of State on the recommendation of the Parole Board, the provisions of Section 67 (1A) (b) (ii) applied and so the appellant would still get credit for this period as against the fresh 7 year sentence.
Neither counsel was able to assist the court on this issue but it had been and remained Mr Jobling’s submission on the appellant’s behalf that if there was any uncertainty the court “should discount the period of return to allow for it”
20.	We have considered the relevant provisions. It might be said that although in one sense the appellant was both on remand for the fresh offence and being concurrently detained otherwise than by order of the court, in another sense the concurrent detention was a period of service of the original sentences imposed by the court which sentenced him on the 11th June 2001 to five years’ imprisonment.
The second of these interpretations we find was the one seemingly applied by this court in R v Stocker in a factual context which we infer from the judgement involved that appellant having been in custody for a period of time both whilst on remand for the fresh offence and concurrently following his administrative recall from licence.

In the absence of any contrary authority, we accede to Mr Jobling’s submission that in arriving at our conclusion as to any order for return to custody pursuant to section 116 of the 2000 Act we should resolve any doubt as to the credit for the recall period in the appellant’s favour.

We add that the ten days spent on remand in custody between arrest and recall, no doubt, will be deducted by the prison service from the seven year sentence, as required by s.67 of the Criminal Justice Act 1967 which applied to this offence, committed as it was before the 4th April 2005, the commencement date of  s.240 of the Criminal Justice Act 2003.
21.	We agree with Mr Jobling’s conclusion (as set out at paragraph 15 of his Skeleton Argument) that the maximum period of liability to be returned to custody is 1 year and 38 days (i.e. from the date of offence on the 16th February 2005 to the sentence expiry date). We find that as against that maximum period an allowance of 225 days must in any event be made because of the 150 days the appellant was in custody following recall from licence on the 28th February 2005 to the date of sentence on the 28th July 2005. That means that the maximum period of return to custody under section 116 could be for 180 days (405 less 225). We have come to the conclusion that having regard to the totality of the fresh 7 year sentence and the period of the order for return and the progress we have been told that the appellant has made whilst in custody since his recall and later sentence some further modest reduction is called for from the maximum period of liability. We will substitute for the original sentence of 8 years and 26 days imprisonment an order that the appellant be returned first to custody under section 116 of the 2000 Act to serve the unexpired period of 150 days in respect of the sentences of 5 years imprisonment passed concurrently on him by the Oxford Crown court on the 11th June 2001 and secondly, thereafter, consecutively to serve the sentence of 7 years imprisonment for the offence of possessing crack cocaine with intent to supply committed by him on the 16th February 2005 less the 10 days during which he was in custody on remand before his recall.  To that extent and in that way the appeal against sentence is allowed.