No: 05/5277/A0
Neutral Citation Number: [2006] EWCA Crim 69
IN THE COURT OF APPEAL 
CRIMINAL DIVISION 
Royal Courts of Justice
Strand
London, WC2 

Tuesday, 17 January 2006
 
B E F O R E:

LORD JUSTICE MOORE-BICK 

MR JUSTICE LEVESON 
 
HIS HONOUR JUDGE FINDLAY BAKER QC 

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R E G I N A 

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ANTHONY BIGNELL
 
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MR PHILIP RULE appeared on behalf of the APPELLANT
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J U D G M E N T 
1.	JUDGE FINDLAY BAKER:  On 8th September 2005, after being committed to Aylesbury Crown Court by justices for sentence for an offence of assault occasioning actual bodily harm, Anthony Bignell was sentenced by His Honour Judge Maher to twelve months' imprisonment, to run consecutively after his recall to custody for one year and 270 days, being part of the unexpired portion of an earlier sentence.  He now appeals against that sentence with leave of the single judge.
2.	The offence of assault occasioning actual bodily harm had been committed in the evening of 24th March.  The appellant had been engaged in a violent argument with two women which was observed by a passing motorist.  Such was the motorist's concern that he had returned to the scene and approached the appellant and one of the women whom he believed the appellant was mistreating.  This led to a confrontation, in the course of which the appellant said to the motorist, "Do you want a piece of me?" and pushed the motorist.  He was then seen by several witnesses to remove from his pockets a pair of nunchukkas (two pieces of wood loosely linked together by some sort of chain or cord).  As the motorist turned to check that the woman was all right, the appellant swung these at him, striking him behind the ear at the base of the skull, knocking him unconscious.  The victim suffered from concussion, a cut ear, and a bruised scalp and jaw but was not more seriously injured.  The appellant was described by his counsel as being in a "complete rage" at the time he struck the blow.  
3.	There was some dispute as to whether the weapon was a set of nunchukkas or a piece of wood, although the statements of independent witnesses would seem to establish it as the former.  Be that as it may, Judge Maher, aware of the dispute, did not treat it as a matter of significance for the purpose of sentence.
4.	The appellant was arrested shortly after the event.  He made no comment answers at interview but tendered his plea of guilty before the justices, who committed him for sentence.
5.	He is 23 years old.  He has a significant offending history from the age of 16 onwards.  In February 2002 he received a community punishment and rehabilitation order for various driving offences, including dangerous driving and for a Bail Act offence.  Six months later he was given a five-year sentence for robbery, and for two offences of burglary and one of assault occasioning actual bodily harm he received concurrent sentences of imprisonment on the same occasion.  These offences had all been committed with an accomplice on the same day in the course of seeking to enter the premises of elderly people, distracting them and stealing from them.  He was released on licence from that sentence on 24th September and committed the assault occasioning actual bodily harm against which sentence he now appeals just six months later.
6.	Three weeks after that, whilst on bail, he was charged with driving whilst disqualified and having no insurance, for which he received a concurrent sentence of imprisonment after the sentence with which we are concerned.
7.	It is clear from a variety of pre-sentence reports and from psychological and psychiatric reports that the appellant has his problems.  He has an IQ of 70, which puts him in the bottom 2% of the population.  His ability to perform is probably lower than that.  
8.	In early 2002 he was kidnapped and robbed at knifepoint, an experience which he said led to him drinking to excess and being drunk when he committed the robbery.  The following month he suffered the trauma of coming upon the scene of a close friend's death in an accident in which that friend had fallen on a live electric rail.
9.	The appellant's licence was revoked on 21st July and he was recalled to custody.  He had been in custody for some six weeks pursuant to that recall by the time sentence came to be passed.  The most that he faced being returned to serve under section 116 of the Powers of Criminal Courts (Sentencing) Act 2000 was 734 days.  He was actually ordered to return to serve 635 days, which, in arithmetical terms, takes into account the period of return to custody ordered administratively preceding the passing of his sentence, though the learned judge did not expressly refer to that period when passing sentence.
10.	What he did do when passing sentence was to recognise the problems which the appellant undoubtedly has; but he expressed concern that this offence of violence, was committed so soon after his release from a sentence for another violent offence and told him that, unless he managed to come to terms with controlling his anger, he would end up in very serious trouble indeed.  He said that the sentence of imprisonment should be served consecutively to the period of return to custody under section 116.
11.	The single judge gave leave to appeal on the ground that the totality of the sentence might merit review.  This necessitates consideration of the role of section 116.  That section enables the court to require a person in the appellant's position to be returned to custody to serve a period equal in length to the period from the date of the new offence to the date of expiry of the sentence for the old offence.  Subsection (6) provides:
"The period for which a person to whom this section applies is ordered ... to be returned to prison-- 
 (b) shall, as the court may direct, either be served before and be followed by, or be served concurrently with, the sentence imposed for the new offence; and 
12.	The proper course for the judge to take in passing a sentence which involves section 116 is therefore first to determine the proper sentence for the new offence, disregarding the possibility of a return to custody under section 116, and then, second, to decide whether the offender should be ordered to return to prison, whether all or only part of the period for which he is eligible to be returned should be served and whether the period of return should be ordered to be served before and be followed by the new sentence or whether they should run concurrently.  It is apparent from his words at sentence that the learned judge in this case did not fully follow this procedure.
13.	Authorities helpfully summarised at paragraph 5-128 of the 2004 edition of Archbold, which, though out of date, remains useful for sentencing under the regime which existed before the Criminal Justice Act 2003, established the following propositions relevant to this case: 
1.  The period which an offender is ordered to serve under section 116 must not be made to run consecutively to a new custodial sentence.  
2.  It is usually appropriate to have regard to the nature and extent of any progress made by the offender since his release and to the nature and gravity of the new offence.  
3.  It is necessary to have regard to the totality of the sentence when deciding how much of the period should be served and whether it should be served before or concurrently with the sentence for the new offence.  
4.  The fact that an offender has been recalled to custody following revocation of his licence does not prevent the court from making an order under section 116 in respect of the same sentence." 
To these four propositions should be added a fifth, derived from the case of Sharkey [2000] 1 Cr App R 409, that, if by the date of the new sentence time has been spent in custody following administrative recall, due allowance should be made for that in determining the period to be served under section 116.
14.	Before us Mr Rule has argued that the total sentence of 2 years and 270 days is manifestly excessive having regard to the principle of totality.  He says that the learned judge did not make allowance for the less serious nature of the new offence when it is compared to those for which he was on licence.  The appellant, he said, had spent some time without offending since his release on licence.  The learned judge had not considered making allowance for the time spent on recall which had passed by the time he himself passed sentence, which is the equivalent of twelve weeks.  He drew attention to the willingness of the appellant while previously on licence to report as instructed and to engage with those responsible for his supervision.  Finally, he drew attention to his present remorse.
15.	For our part we do not consider that it is established that the judge failed to take account of the time already spent on recall, but with the other submissions we do to some extent agree.  In particular we agree that the total sentence, which would be in the region of three years in all, was manifestly excessive.  For our part we would reduce the period to be served under section 116 to twelve months and we would order it to be served before the sentence of twelve months for the assault occasioning actual bodily harm, thus replacing the sentence passed with a sentence which, in all, would amount to some 24 months.  To that extent we would allow this appeal.
16.	LORD JUSTICE MOORE-BICK:  The sentence will be varied by reducing the period of return to custody to twelve months.  There will be no recovery of defence costs order.