Neutral Citation Number:  [2007] EWCA Crim 1848
Case No: 0700109A1
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL 
(CRIMINAL DIVISION)
 
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 24  July 2007
Before :

LADY JUSTICE HALLETT DBE
MR JUSTICE SILBER
and
MR JUSTICE WILKIE
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	STEPHEN KENNY ASHES	Appellant	
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	REGINA	Respondent	
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(Transcript of the Handed Down Judgment of
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Yunus Valli  counsel for the Appellant 
David Brooke  counsel for the Respondent 

Hearing date: 4 July 2007
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Judgement

Mr Justice Silber: 
I. Introduction
1. By Chapter 5 of the Criminal Justice Act 2003 (“ the 2003 Act”) , provisions were made to impose indeterminate sentences for public protection on offenders if the court considered that there was “a significant risk to members of the public of serious harm occasioned by the commission by him of further specified offences” (section 225(1) of the 2003 Act).   Such sentences comprised a specified minimum   term which was one-half of the sentence which would otherwise have   been imposed as a determinate sentence   less the  time spent by the offender  in custody prior to sentence for that offence but the release of the offender  would only take place after first  he had served the specified  minimum term and second thereafter only  when   the Parole Board   considered  it safe   to release the offender.
2. Stephen Ashes received a sentence of imprisonment for public protection   on 1 December 2006 and he appeals against this sentence with the leave of the single judge. On 3 May 2007, this Court adjourned the appeal of Steven Ashes so that at a subsequent hearing a separate division of this court could determine:
A) How, under the existing legislation, the court should set a minimum term when imposing a sentence of imprisonment for public protection where it is imposed upon a prisoner who is already subject to and serving an existing custodial term (Issue A);
B) How the court should approach as a matter of principle imposing a sentence of imprisonment upon someone who is already serving a sentence of imprisonment for public protection and whether in the circumstances of a case such as this some adjustment, if it is otherwise permissible, may be made to the term which he is destined to serve before release may be considered (Issue B); and 
C) How in such circumstances, if it is permissible to do either the first or second as a matter of principle, the court should approach the time spent in custody (Issue C).
 Our task has been to answer these questions as well as to hear the appeal but we should add that both counsel   agree with the analysis and the answers to these questions which we set out in paragraphs 3 to 14 below. At the end of the oral hearing on 4 July 2007, we dismissed the appeal and we will now set our reasons for doing so. As we will explain, the statutory provisions are complicated and difficult to apply and it is not surprising that the sentencing judge did not apply them correctly.

II. Issue A

3. The question of whether a court should pass an indeterminate sentence, such as an extended sentence or an order for public protection, on an offender, who is already serving an existing determinate term, has been the subject of a number of recent decisions by this court. Those authorities were considered  in the  recent case of R v C and others [2007] EWCA Crim 680  in which Latham LJ, the  Vice-President of the Court of Appeal Criminal Division  when giving the judgment of this court, explained  at paragraph 19  that:

“.a. There is nothing unlawful about the imposition of a concurrent or consecutive sentence within either regimes relating to extended sentences, and indeed, as explained by Hooper LJ in R –v- O'Brien et al [2006] EWCA Crim 1741, where sentences of life imprisonment or imprisonment for public protection are imposed under chapter 5, this court will not interfere where extended or indeterminate sentences were justified, unless the practical result is manifestly excessive, or for some reason gives rise to real problems of administration.

b. Nonetheless, judges should try to avoid consecutive sentences if that is at all possible and adjust the custodial term or minimum period within concurrent sentences to reflect the overall criminality if that is possible within other sentencing constraints.

c. If consecutive sentences are considered appropriate, as in the example that we have already given, or necessary, if one or more of those sentences are determinate sentences, the determinate sentences should be imposed first, and the extended sentence or sentences expressed to be consecutive.

d. In shaping the overall sentence, judges should remember that there is no obligation for the sentences to be expressed in historical date order. There is nothing wrong with stating that the sentence for the first offence in point of time should be served consecutively to a sentence or sentences imposed for any later offence or offences.”

4. The reasons why a court should try to avoid imposing   sentences consecutive to an indeterminate term for public protection were explained by Hooper LJ when giving the judgment of this court in R v O’Brien and others [2006] EWCA 1741, [2007] 1 Cr. App R (S) 75 when he said that:

 “59...it is undesirable to impose consecutive indeterminate sentences or order an indeterminate sentence to be served consecutively to another period of imprisonment. Common sense suggests that a sentence of life imprisonment or of  IPP starts immediately on its imposition. Given the difficulties that may be  encountered already in determining when a prisoner must be released or is eligible for parole, it seems to us to be much easier not to compound those difficulties by making indeterminate sentences consecutive to other sentences or 	periods in custody”.

5. The answer to question A is that the court should try to impose a term for the sentence for public protection which is concurrent with the existing determinate sentence but which  also takes account of:

(a)  the period still then  remaining to be served under the existing determinate term and that should be the period of the sentence still to be served but then halved to take account of the automatic release provisions for determinate sentences ; 

(b)  the appropriate additional period as the sentence for the offence in respect of which the court was minded to impose a term of imprisonment for public protection, which should then be halved; and 

(c) the need to ensure that the total of the sentences imposed under sub- paragraphs (a) and (b) above does not offend the principle of totality. 

6. We stress that the sentencing judge should bear in mind that the period imposed in the sentence for public protection is the period which the offender must serve before he or she is considered for parole and that means that the constituent period to be taken into account for ascertaining   the determinate sentence at stage (a) above is the period remaining to be served (which is now one-half of the sentence) rather than the total sentence imposed.

III Question B

7. In the ordinary way, in cases in which    the appropriate sentence would be a consecutive sentence to the sentence for public protection, there is a serious problem because   a sentencing judge considering imposing such a sentence does not know when the existing sentence for public protection will expire as he or she cannot predict when the Parole Board will agree to release the offender. A further difficulty is that even if the offender might be safe for release at the end of the sentence for public protection, there is no guarantee that he or she will also be safe to be released at the end of any consecutive determinate sentence Thus problems arise first as to how to shape a sentence which would overcome this difficulty second in ascertaining the date when the sentence for public protection ends and when the determinate sentence starts. 

8. There are three possible approaches depending on the circumstances and they are;
(a) if the subsequent offence is one for which a sentence of imprisonment for public protection is available, then the sentencing Judge could pass a new sentence of imprisonment  for public protection  so as to take account of not only the balance yet  to be served  of the existing minimum term but also the principle of totality;

(b) if the offence with which the sentence is concerned is “associated” with the offence of which the sentence of imprisonment for public protection was passed, one other option might be to adjust the minimum term of the sentence for public protection to reflect the criminality of that extra offence but to give no separate sentence for the new offence (see section 226(1) of the 2003 Act); or 

(c) the judge could order that the determinate sentence be served first and the sentence for public protection be served consecutively but only if he was dealing with them on the same occasion. Latham LJ explained in C (supra) in paragraph 19 as we pointed out in paragraph 2 above that:

 “ …c. all  consecutive sentences are considered appropriate, as in the example that we have already given, or necessary, if one or more of those sentences are determinate sentences, the determinate sentences should be imposed first, and the extended sentence or sentences expressed to be consecutive.
d. In shaping the overall sentence, judges should remember that there is no obligation for the sentences to be expressed in historical date order. There is nothing wrong with stating that the sentence for the first offence in point of time should be served consecutively to a sentence or sentences imposed for any later offence or offences.”

9. Our provisional view is that when dealing on a subsequent occasion with a further offence, the sentencing court should impose an appropriate concurrent sentence, be it determinate indeterminate or extended, depending on the circumstances. In any event the Parole Board would be able to take into consideration the subsequent offence in determining whether to release the offender.  The facts of this   appeal do not require us to reach a concluded decision on this issue and we consider that it would be more appropriate to await a case in which this issue is a live point.

IV Issue C.

10. Under the provisions of section 67 of the Criminal Justice Act 1967, time spent on remand could only count as part of the sentence if the offender was not in custody for any other reason. Section 67 has now been repealed save in respect of offences committed before 4th April 2005 and section 240 (2) of the 2003 Act provides that: 
"It is immaterial … whether the offender –
(a) has also been remanded in custody in connection with other offences; or
(b) has also been detained in connection with other matters.”

11. Section 240 (3) of the 2003 Act provides that, in a case where section 240 applies: 

"Subject to subsection (4), the court must direct that the number of days for which the offender was remanded in custody in connection with the offence or a related offence is to count as time served by him as part of the sentence.”

12 .In most cases, the court may be expected to give a direction under section 240 (3) that the whole of the period of remand will count as time served as part of the sentence and this has to be announced in open court. Significantly, this obligation is subject to section 240(4) of the 2003 Act, which insofar as is material, provides that: 

"(4) Subsection (3) does not apply if and to the extent that-
(a) rules made by the Secretary of State so provide in the case of –
(i) a remand in custody which is wholly or partly concurrent with a sentence of imprisonment, or
(ii) sentences of imprisonment for consecutive terms or for terms which are wholly or partly concurrent, or 
(b) it is in the opinion of the court just in all the circumstances not to give a direction under that subsection.”

13.  On 23rd July 2005, the Remand in Custody (Effect of Concurrent and Consecutive Sentences of Imprisonment) Rules 2005 were promulgated   and in rule 2, it is provided that: 

"Section 240 (3) of the 2003 Act does not apply in relation to a day for which an offender was remanded in custody – 
(a) if on that day he was serving a sentence of imprisonment (and it was not a day on which he was on licence under Chapter 6 of Part 12 of the 2003 Act or Part 2 of the Criminal Justice Act 1991); or
(b) where the term of imprisonment referred to in subsection (1) of that section is ordered to be served consecutively on another term of imprisonment, if the length of that other term falls to be reduced by the same day by virtue of section 67 of the Criminal Justice Act 1967”

14. Thus the answer to this question posed depends on whether   the offender was in custody because he was serving an existing sentence when he is sentenced for the second offence. If he is, then his time in custody will not be deducted for the purpose of the second sentence while if he was not in custody because he was serving an existing sentence, then this time will be deducted from his sentence.

V. The Present Appeal.

15. On 1 November 2006, at the Crown Court at York the appellant pleaded guilty on re-arraignment to a count of aggravated burglary. At that time he was serving a sentence of   26 months imprisonment which had been imposed on him for dangerous driving and contempt of court on 2 August 2006.

16. On 1 December 2006, at the Crown Court at York the appellant was sentenced by Judge Hoffman to imprisonment for public protection with the specified period being set at 4 ½ years less 210 days which the appellant had spent on remand. We will have to explain why the judge erred in calculating the days spent by the appellant on remand as he apparently took into account the period when the appellant was serving the earlier sentences imposed on 2 August 2006.

17. On 4 December 2006, again at the Crown Court at York the appellant admitted being in contempt of court when he was sentenced on 1 December 2006 and he was then sentenced for this contempt to 12 months imprisonment but it is common ground that this sentence did not lead to an increase in the sentence for public protection. So we need not consider it further.

18. The aggravated burglary occurred on the night of 1 May 2006 when the appellant and his two co-accused burst into a house occupied by a youth called Horwell who was at home with his 16 year old sister and three friends. Each of the appellant’s group was armed with one of them having a knife, another having   a screwdriver and a third had a CS gas canister. Although the appellant and his co-accused had attempted to disguise their faces, the appellant was recognised. The appellant and his co-accused threatened all the people in the house. They demanded money and they were described as running amok. Indeed such was the fear engendered that Horwell’s sister whose home was being invaded suffered an asthma attack.

19. Her brother was taken into the bedroom with one of his friends and the appellant demanded money from him. The appellant and another co-accused ransacked the room and Horwell handed over his   wallet   containing £40 cash and his bank cards. They also took jewellery from one of the drawers and the appellant threatened to stab Horwell. A knife was put to his friend’s face and the co-accused punched both men. At some point, the appellant   jumped on the bed and he sprayed both men from the CS gas canister.

20. While this was happening, the third co-accused remained in the kitchen threatening the others at knife point and he took some jewellery from them. The house was searched and a further £350 was taken from the main bedroom before the three burglars pointed their knifes at Horwell’s sister and he threatened her before telling her not to tell anyone or she would then be killed. The appellant and his co-accused then left.  Some of the stolen jewellery was recovered from the home address of the appellant.

21. The appellant was born on 17 February 1982 and so he is now 25 years old. He had six previous convictions for threatening behaviour, two for assault occasioning actual bodily harm, one for affray and one for battery. 

22 There was a letter from the appellant and three character references, which we will take into consideration. The pre-sentence report stated that there was a high risk of the appellant re-offending and of causing significant physical, psychological and emotional harm. It was pointed out that when the appellant was under the influence of drugs, he lost all sense of the possible consequences of his actions.

23. The Judge in sentencing the appellant pointed out that this was a planned burglary committed by the appellant when he was on bail. His previous convictions raised a statutory assumption of dangerousness. The Judge took the view that there was a significant risk of the appellant causing serious harm to the public in the future by the commission of further offences.

24. It was contended on behalf of the appellant that a sentence of imprisonment for public protection should not have been imposed. In the light of the appellant’s previous convictions, the sentencing judge had to proceed on an assumption of dangerousness unless it was unreasonable to do so. In   our view it was not unreasonable to do so for two compelling reasons. First, the pre-sentence report pointed out that there was a high risk of the appellant re-offending and of causing significant physical, physiological or emotional harm. Second,   the appalling nature of this aggravated burglary would by itself well have justified a finding that it was not unreasonable to impose a sentence for imprisonment for public protection. Thus we reject the appeal that the order for public protection should not have been imposed.

 25. We now turn to consider the ground of appeal that the specified period of   4 years and 6 months less time spent on remand   was manifestly excessive. The approach of the Judge was to say that he would have passed a sentence of 7 years but he   had to take account of the fact that the appellant was already serving a sentence of 26 months.

26.Pausing a this stage, we do not consider that there was anything wrong with the sentence of 7 years because of the many aggravating factors of this offence of aggravated burglary which included (a) the violence used; (b) the  fact that this was  a planned attack; (c) the uses of weapons and face masks; (d) the involvement of three people in this attack; and (e) the terrible effect this must have had on those in the house which was the subject of the burglary. In reaching that conclusion, we have taken into consideration all the mitigating factors in this case such as the appellant’s early plea of guilty, the appellant’s remorse, the letters from and about the appellant  to which we have referred  and the progress made by the appellant in prison. 

27. The judge explained how he reached the specified term of 4 ½ years. Having considered the existing sentence of 26 months, he then explained that he would regard that as a sentence of 2 years to which he added the period of 7 years to which we referred in paragraph 25 above. This then gave a total of 9 years which he then halved so that it gave his final term of  4 ½ years.

28. The judge also stated that the sentence had to be reduced to take account of the 210 days which the appellant had spent in custody. We will also explain that this is a miscalculation as the   appellant was only entitled to credit for 82 days spent in custody because the remaining days were spent in custody in serving the 26 month sentence imposed on him on 2 August 2006 and to which we referred in paragraph 15 above and these days cannot be taken into consideration for the aggravated burglary sentence for the reasons explained in paragraphs 10 to 14 above. 

29. We are very conscious of the difficult task confronting a sentencing Judge because of the complexity of the statutory provisions. As we have explained in paragraph 14 above,   the approach which he ought to have adopted was to have taken account of the periods still remaining to be served under the existing determinate term before specifying the period for the purposes of the sentence for public protection. If the judge had followed that course, he would have found that of the 26 months sentence imposed on the appellant on 2 August 2006,   he had served 128 days but that figure has to be doubled because he would have been released half way through. That then gives a figure of between 8 and 9 months and we will call it 9 months which then has to be deducted from the 26 month period; that would give a balance of 17 months.
 
30. This term would then have had to have been added on the 7 years to give a total sentence of 8   years 5 months which we do not consider offends the principle of totality. In accordance with the ordinary principles that would then have to be divided in half so as to give a specified period   of 4 years and 2 ½   months.

31. The appellant is also entitled to credit for the time he had spent on remand prior to serving his first sentence and that is a period of 82   days.  Thus in our view the minimum term which should have been specified was 4 years and 21/2 months less 82 days but this is longer than the sentence imposed by the judge, which was 4 years 6months less 210 days. This court cannot increase the sentence imposed by the sentencing judge (section 11 (3) of   Criminal Appeal Act 1968). So the appeal has to be dismissed.