Case No: 2006/5341/A8 
Neutral Citation Number: [2007] EWCA Crim 1399
IN THE COURT OF APPEAL 
CRIMINAL DIVISION 
Royal Courts of Justice
Strand
London, WC2 

Date: Thursday, 24 May 2007
 
B E F O R E:

THE VICE PRESIDENT
(LORD JUSTICE LATHAM) 

MR JUSTICE IRWIN 

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R E G I N A 

-v- 

ANTHONY JESSON
 
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MR G NAPTHINE appeared on behalf of the APPELLANT
MR A HARRIS appeared on behalf of the CROWN
 
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J U D G M E N T 

1.	MR JUSTICE IRWIN:  On 25th August 2006 before Magistrates the appellant pleaded guilty to one offence of possessing criminal property and was committed to the Crown Court for sentence under section 3 of the Powers of Criminal Courts (Sentencing) Act 2000.  On 27th September 2006 at the Crown Court at Leicester in front of His Honour Judge Milmo QC the appellant was sentenced to three years and 357 days' imprisonment concurrent to a sentence he was serving in respect of which he had been administratively recalled.  
2.	The appellant's background is highly relevant to this case and to the sentence.  He was born on 7th October 1969.  At the time of sentence for this index offence he had appeared before the courts on 43 previous occasions, including numerous appearances for burglary and theft.  The particularly relevant convictions are dwelling-house burglaries in 1986, 1988, 1989, 1996 and theft from a dwelling in 2003.  On 4th September 2003 he was sentenced to four years for robbery and other matters - the offences in respect of which he was recalled.
3.	The facts of the index offence are that on 12th July 2006 the elderly complainant, Mrs Hasnip left her home in Grey Crescent, Newton Linford at about 1 pm.  She left the property locked and secure.  On her return at about 5 o'clock that day she found that the property was insecure and that she had been burgled.  A quantity of distinctive silverware, mainly cutlery, vases and ornaments, some money and some jewellery had been stolen, including items of sentimental value.  
4.	At approximately 4.10 on the same day police officers had cause to notice a vehicle and recognised the appellant as the driver of the vehicle.  They followed him, lost sight of the vehicle but shortly thereafter it was located abandoned.  Two suitcases and several carrier bags were found in the vehicle.  On inspection these were found to contain items stolen in the burglary which were later identified by the victim.  
5.	The appellant was arrested later the same day at home.  In interview he denied committing the burglary.  He stated that he did not steal the property, however he knew it was stolen and that he was going to try and sell it.  He was then dealt with on the basis that someone else had burgled the victim's home and that the property which he was to dispose of were the proceeds.
6.	It is clear that the learned judge was concerned about the preparation of this case but also clear that the factual basis of the sentence was straightforward.  A man with a terrible record had to be sentenced for the possession of proceeds of domestic burglary from the house of a 77-year-old lady and it was a serious and distressing offence for her.  The learned judge was clear as to the intended effect of this sentence.  He considered it proper that the appellant should serve an additional 12 months over and above the sentence he was currently serving.  He was rightly concerned about how he could achieve this technically.  The technical problem he perceived was as follows.  The appellant was in prison serving the remainder of his 2003 four year sentences for robbery.  He was thereby on administrative recall.  For a considerable period statute has forbidden a court from ordering a sentence to be served consecutive to a period of administrative recall - see section 84 of the Powers of Criminal Courts (Sentencing) Act 2000 and the cases of Laurent [2001] Cr.App.R (S) 65 and Cawthorn [2001] Cr.App.R (S) 136.  
7.	The learned judge is a careful and highly experienced criminal judge.  He adjourned the case for seven days to consider how to achieve the sentence he considered appropriate.  On 27th September the appellant was returned to court and sentenced with the judge making the following remarks:
"I have already indicated my intention was to extend your existing sentence by some twelve months, either by passing a consecutive or concurrent sentence.  I adjourned the actual sentencing in order to revisit the section 116 problem in the light of recent authority and the comments of Dr Thomas [that is to say the well-known authority on sentencing]."  
The judge continued:
"My conclusion is that easiest way to achieve my object is to impose a concurrent sentence - that is to say, one that will run from today - although I will work out by adjusting the days so effectively it runs from last Friday." 
That is what the learned judge did.  He said: 
"The sentence therefore: four years from last Friday or, if it's more appropriate ... three years and three hundred and fifty-seven days from today."
8.	The appellant was granted leave by the single judge who recognised that there were technical difficulties but concluded that it was arguably wrong to solve them by a longer concurrent sentence as had been the approach adopted.  There are thus two limbs to this appeal.  First, whether the sentence was too severe in its aim to add 12 months to the existing sentence; and secondly, the solution of the perceived technical problem as the judge reached it.  
9.	We deal first with the substantive point.  We think that the learned judge's sentencing objective was appropriate.  For a man of this record on licence from prison on a serious robbery offence, committing renewed professional dishonesty relating to domestic burglary it is perfectly proper that there should be a significant sentence.  This appellant committed this offence close in time and location to the burglary.  These goods were of significant value and of sentimental value.  All those are relevant factors for sentencing in a case of this kind -- see Webbe and others [2002] 1 Cr.App.R (S) 22, at page 82.  We do not accept the submissions made on the appellant's behalf that this sentence in its intended effect was manifestly excessive or too severe.
10.	Turning to the technical problem, both the learned trial judge and the single judge considered that two statutory provisions were relevant, section 116 of the Powers of Criminal Courts (Sentencing) Act 2000 and section 265 of the Criminal Justice Act 2003.  Firstly, section 116 of the 2000 Act contains a power to return a defendant to custody who has committed a further offence after his release on licence.  This permits a judge to order a return to custody even where a prisoner is already subject to administrative recall.  The section is repealed by the Criminal Justice Act 2003 but it is important to note that it was repealed only in respect of cases where the earlier offence, that is to say the offence giving rise to the sentence in respect of which the prisoner is returned to custody, was committed on or after 4th April 2005.  Where the earlier offence was committed before 4th April 2005 the power subsists -- see Criminal Justice Act Commencement No 8 and Transitional and Savings Provisions Order 2005.  The learned judge could therefore have ordered the appellant to return to custody to serve the balance of his 2003 robbery sentence, due allowance being made for the time in prison by reason of administrative recall -- see Howell [2006] EWCA Crim 860 and Stocker [2003] EWCA Crim. 121.  
11.	It is submitted by both counsel to us, and we are very grateful for their help and their agreement, that the correct approach should have been to make an order pursuant to section 116.  We therefore quash the sentence passed by the learned judge and substitute an order under section 116 of the Powers of Criminal Courts (Sentencing) Act 2000 so that the appellant should return to custody for a period of 251 days (the calculation being agreed between counsel).  In addition there will be a consecutive sentence of two years' imprisonment, of which of course one year will be the period which is spent in custody in the normal way.  
12.	This court repeats our sympathy for those who have to grapple with the Byzantine complexity of the sentencing provisions faced by sentencers.  It is to be stressed that the solution which could be reached in this case is open only when the offence giving rise to the order to return to custody took place before 4th April 2005.  Where this situation arises in respect of offending after that date, and the initial sentence exceeds 12 months, then the power to order a return to prison has been abolished and section 265 of the Criminal Justice Act 2003 prohibits a prison sentence being made consecutive to an earlier sentence in respect of which the defendant has been released pursuant to Part IV of the Act.  
13.	To that extent and for those reasons this appeal succeeds.