No:
04/2015/A4
Neutral Citation Number:
[2004] EWCA Crim 1015
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
Strand
London, WC2
Wednesday 21 April 2004
B E F O R E:
LORD JUSTICE KAY
MR JUSTICE RODERICK EVANS
and
MR JUSTICE PITCHERS
- - - - - - -
REFERENCE BY THE CRIMINAL CASES REVIEW COMMISSION UNDER SECTION 9 CRIMINAL APPEAL ACT 1995
R E G I N A
-v-
DELROY CARL MELADY
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Computer Aided Transcript of the Stenograph Notes of
Smith Bernal Wordwave Limited
190 Fleet Street  London EC4A 2AG
Tel No: 020 7404 1400 Fax No: 020 7831 8838
(Official Shorthand Writers to the Court)
- - - - - - -
MR ADAM PEARSON
appeared on behalf of the APPELLANT
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J U D G M E N T
1.
MR JUSTICE RODERICK EVANS: This appellant appeals against a sentence imposed upon him at the Crown Court at Nottingham on 10th January 2003. His application for leave to appeal against sentence was refused by the single judge on 3rd April 2003 and was not thereafter renewed. The matter now comes before the court following a reference by the Criminal Cases Review Commission.
2.
The matter which gives rise to the reference is how time spent in custody by a defendant following administrative revocation of a licence from an earlier sentence should be regarded when the defendant appears for sentence for offences committed during the 'at risk' period of that earlier sentence and the court wishes to exercise its powers under
section 116 of the Powers of Criminal Courts (Sentencing) Act 2000
.
3.
In order to understand the way in which the present problem has arisen it is necessary, albeit briefly, to set out the relevant parts of this appellant's history of offending and sentences.
4.
On 20th April 2001 Mr Melady was sentenced to serve six months' imprisonment. On 24th May 2001 he was sentenced to serve two years' imprisonment. That was ordered to run consecutively to the earlier six-month period. Under the terms of
section 51(2) of the Criminal Justice Act 1991
the two periods of imprisonment were to be treated as a single term of imprisonment. The total length of sentence was therefore two years six months' imprisonment. The Prison Service calculated this to be a total of 764 days, which was adjusted for time spent by the appellant in police custody.
5.
The appellant was therefore a short-term prisoner for the purposes of section 33 of the Criminal Justice Act. Under the terms of section 33(1)(b), the Secretary of State was under a duty to release him on licence after the appellant had served one-half of his term of imprisonment.
6.
On 15th March 2002 Mr Melady was conditionally released on licence. At the date of his release, the following were the significant dates in relation to the original sentence. The licence expiry date was 19th September 2002 and the sentence expiry date was 30th March 2003. That meant that at the time of his conditional release on licence the appellant had 188 days left on his licence and the unexpired period of the original sentence was 380 days.
7.
The charges which gave rise to this present prosecution arose firstly on 5th April 2002 when Mr Melady was observed to run away from an abandoned vehicle which had been stolen. He was subsequently arrested and bailed.
8.
At the time of his arrest, he had 167 days to run on his licence and 359 days was the unexpired portion of the original sentence.
9.
On 6th May 2002 Mr Melady failed to attend the police station in answer to his bail and on 14th May 2002 the Secretary of State exercised the powers granted to him by section 39 of the Criminal Justice Act and revoked the appellant's licence administratively.
10.
On 17th May 2002 the police were involved in a high-speed pursuit of a stolen vehicle. That vehicle was driven by the appellant, and the appellant was eventually arrested.
11.
At the time of that arrest, Mr Melady had 125 days to run on his licence and the unexpired portion of the original sentence was 317 days.
12.
On 17th May Mr Melady started a period of imprisonment as a licence revokee. At the same time he was also on remand for the new offences. This state of affairs existed until 19th September 2002, when the licence period expired. The period between 17th May and 19th September 2002 amounted to 125 days. From 20th September 2002 to 9th January 2003 the appellant was remanded in custody pending trial for the new offences. The total time during which the appellant was held solely on remand was therefore 112 days.
13.
On 10th January 2003, following the entering of guilty pleas, the appellant appeared before Her Honour Judge Hampton to be sentenced. In relation to the new offences, that is those offences committed on 5th April and 17th May 2002, he was sentenced to a total of three years' imprisonment. The judge considered the fact of the appellant committing offences during the unexpired portion of the original sentence. She was informed by the Crown that as at 17th May 2002 there was an unexpired portion of the original sentence of 317 days. The judge exercised her powers under
section 116
of
the 2000 Act
and ordered the appellant to serve 315 days of the original sentence before he started to serve the three years imposed for the new offences.
14.
Following his remand to prison, the Prison Service calculated the date upon which Mr Melady was to be released. On 7th February 2003 the authorities at Ashwell Prison calculated that the conditional release date would be 23rd April 2004. In so doing, the prison authorities gave Mr Melady credit for 236 days which he had spent on remand and during his period in police custody. Included within that period of 236 days was the 125 days which Mr Melady served during the period when his licence had been revoked.
15.
When later transferred to a different prison, the prison at Ranby, the authorities recalculated the release date. The prison on that occasion gave Mr Melady credit for 104 days, which was time that he had spent on remand, and calculated his conditional release date to be 2nd September 2004. The prison then refused to give Mr Melady credit for the 125 days served during the period of licence recall.
16.
When the judge passed sentence, she made no allowance when fixing the 315-day period which the appellant was to serve from his last sentence for the fact that he had already served 125 of those days.
Section 67 of the Criminal Justice Act 1967
authorises the Prison Service to reduce sentences of imprisonment to reflect certain periods of time spent in custody. However, periods spent in custody which are attributable to the administrative revocation of a licence do not come within the ambit of
section 67
. The result is, as in this case, that the 125 days cannot be deducted from the 315 days, nor can it be deducted from the subsequent sentence of imprisonment - in this case the three-year term - as that period refers to different offences.
17.
In the case of
Sharkey
[2001] 1 Cr App R 409
, Lord Bingham said that, in circumstances similar to those that exist in the present case, the court would in the ordinary way wish to make allowance for any time spent by a defendant following administrative recall under his licence.
18.
In this case credit should have been given for the 125 days spent in custody. As the appellant is a short-term prisoner, each day spent in custody equals two days imposed by way of a sentence. Therefore, in giving allowance at this stage, the 125 days falls to be doubled. Therefore from the period of 315 days imposed by the judge we deduct 250 days and impose instead of the 315-day period a period of 65 days. Therefore the sentence will be 65 days, followed by three years. To that extent this appeal is allowed.