Neutral Citation Number: [2013] EWCA Crim 1179
Case No: 2013/2436/A4
IN THE COURT OF APPEAL
CRIMINAL DIVISION 
Royal Courts of Justice
Strand
London, WC2A 2LL 

Date: Friday, 14 June 2013
 
B e f o r e:

LORD JUSTICE ELIAS 

MR JUSTICE EDWARDS‑STUART 
 
THE RECORDER OF BRISTOL
HIS HONOUR JUDGE FORD QC 
(Sitting as a Judge of the CACD) 
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 R E G I N A 

v 

PAUL STARR
 
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Miss K Robinson appeared on behalf of the Applicant
Mr P Jarvis appeared on behalf of the Crown
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J U D G M E N T
1.	LORD JUSTICE ELIAS:  This appeal raises a short point.  It is an unusual case because the application is made six‑and‑a‑half years out of time.  The applicant was sentenced for a variety of a offences including burglary, theft, handling stolen property and possession of an imitation firearm.  He was sentenced by Mr Recorder Jameson QC on 11th October 2006 to a sentence of five years' imprisonment.  At the time of that sentence he was already in prison having been recalled from an earlier sentence that had been imposed on 18th March 2005 of two‑and‑a‑half years.  We are told that the judge was informed that the prisoner was going to be re‑released following his recall on 5th December 2006.  In the circumstances, the judge said this at the end of his sentencing remarks. The sentence:
" ... will start on 5th December when you have completed your existing sentence."  
As we have indicated, that was not entirely an accurate statement; it was when he would have completed the period of recall.  
2.	The short point advanced before us was that the sentence was unlawful and contravenes section 265 Criminal Justice Act 2003.  This provides as follows:  
"The court sentencing a person to a term of imprisonment may not order or direct that the term is to commence on the expiry of any other sentence of imprisonment from which he has been released."  
The appellant in this case had been released from the original sentence imposed in March 2005.  The recall for breach of licence did not affect that fact.  It follows that the sentence here in the way it was imposed was unlawfully imposed.  The judge could not simply make the sentence run from the expiry of the earlier sentence.  
3.	That conclusion is in accord with the decision of this court in Costello [2010] 2 Cr App R (S)608.  As the court pointed out, under section 116 of the Powers of Criminal Courts (Sentencing) Act it was open to the court to direct that a defendant should serve out the remainder of the original sentence or any part of it and to stipulate that the new sentence should run from the end of that period.  That provision was repealed by section 332 of and Schedule 37(2) to the Criminal Justice Act 2003.  As the court noted in Costello, this was a most unsatisfactory result because the effect of the repeal is that the second sentence of imprisonment would overlap with the time spent in prison resulting from the recall for breach of the licence.  Where that period of recall exceeds the length of the second sentence, it means that there is in effect no sanction at all for the later offence.  In Costello the sentencing judge had sought to deal with this by giving a longer sentence than would otherwise have been given for the index offence, but the court held that this was unlawful.  It infringed the principle that the sentence should be commensurate with the offence and was an unjustified attempt to get round the effect of the repeal and to frustrate the intention of Parliament, notwithstanding that Parliament may not have foreseen the unfortunate consequences of the repeal.
4.	However, we are grateful in this case for submissions from counsel on behalf of the prosecution, Mr Jarvis, who has pointed out that the repeal of section 116 only applied with effect to offences committed after 4th April 2005.  In this case the offences for which the appellant was recalled were committed before that date; indeed he was sentenced before that date on 18th March 2005.  So the judge did in fact have the power to achieve what he wished to do.  He could have achieved the same result simply by directing that the prisoner should be recalled to serve out the remainder of his original sentence or such part of it has he thought appropriate, and to stipulate that the new sentence should run consecutively from that date.  So the judge could here have exercised the power under section 116 so that the defendant would have been required to serve the original sentence until 5th December 2006 and for the sentence he was imposing to run from that date.  
5.	We can now exercise the power which the judge could have exercised at that time.  Accordingly, we think there is no injustice to this appellant in taking that step.  So we quash the sentence imposed by the judge.  We direct in accordance with section 116 that the appellant should be recalled to serve the part of the sentence originally imposed until December 5th 2006 and that the sentence of five years should run from that date.  This achieves precisely the same result as the sentence imposed by the judge.  It does so by exercising the appropriate power.  It is entirely in accord, it seems to us, with the decision of this court in Jesson [2008] 1 Cr.App.R (S) 195.  
6.	Accordingly, although technically the appeal succeeds because the way in which the judge reached his sentencing decision was unlawful, we have substituted a sentence which achieves precisely the same result.