Costello v R

Factual and Procedural Background

An habitual criminal, hereafter the Defendant, was sentenced to a four-year imprisonment term ("Sentence A"). Following statutory provisions under section 244 of the Criminal Justice Act 2003 ("CJA 2003"), he was released after serving two years on licence, with the licence period covering the remaining two years of Sentence A. Three months into this licence period, the Defendant committed a new offence which ordinarily warranted a two-year sentence ("Sentence B"). At the time of sentencing for this new offence, the Defendant had been administratively recalled to prison under Sentence A with 18 months remaining to serve. The sentencing court for Sentence B was concerned that imposing a standard two-year sentence might not increase the actual custodial time, due to mandatory release provisions and the ongoing recall under Sentence A. The key question was whether the court was obliged to impose the ordinary two-year sentence or could increase Sentence B to ensure additional custodial time was effectively served. The Defendant appealed the sentence imposed for the new offence.

Legal Issues Presented

1. Is the sentencing court required to impose the ordinary sentence for the new offence (Sentence B) even if it adds no additional custodial time due to the operation of early release and recall provisions under the existing sentence (Sentence A)?
2. May the sentencing court increase Sentence B beyond the ordinary sentence to ensure that the Defendant serves additional custodial time?
3. How do statutory provisions, including the repeal of section 116 of the Powers of Criminal Courts (Sentencing) Act 2000 and the operation of section 265 CJA 2003, affect the imposition and concurrency of sentences in this context?

Arguments of the Parties

Appellant's Arguments

• The Defendant contended that the sentencing judge was not entitled to increase Sentence B beyond the ordinary term to compensate for the fact that Sentence B might not add additional custodial time due to recall under Sentence A.

Respondent's Arguments

• The Crown argued that a sentence which effectively adds no or insufficient custodial time for the new offence cannot be considered commensurate with the offence under section 153(2) CJA 2003.
• The Crown submitted that increasing Sentence B to reflect the true criminality was appropriate and did not offend statutory rules, particularly as section 265 CJA 2003 bars making Sentence B consecutive to Sentence A but does not prohibit adjusting the length of Sentence B.

Table of Precedents Cited

Court's Reasoning and Analysis

The court began by analysing the statutory framework governing sentencing of offenders who re-offend while on licence, focusing particularly on sections 153(2) and 265 of the Criminal Justice Act 2003, and the now-repealed section 116 of the Powers of Criminal Courts (Sentencing) Act 2000.

Section 153(2) requires that custodial sentences be the shortest term commensurate with the offence, measured by the seriousness of the offence and any associated offences sentenced concurrently. Section 265 prohibits courts from making a new sentence consecutive to a sentence from which the offender has been released early on licence, effectively barring the formal aggregation of sentences in such cases.

Prior to the repeal of section 116 PCC(S)A 2000, courts could order the offender’s return to prison under the original sentence before serving the new sentence, allowing effective aggregation of sentences. The repeal of section 116 shifted the power of recall solely to the Secretary of State, removing the court's ability to order return to prison for this purpose.

The court noted that administrative recall under the current statutory provisions (sections 255A to 256 CJA 2003 as amended) is complex and uncertain in duration. Recall may last only 28 days or be extended depending on the nature of the original offence and risk assessments, but it cannot be assumed that recall will last until the end of the original licence period.

The judge in the instant case increased Sentence B from the ordinary 12 months to 31 months to ensure additional custodial time, premised on the assumption that recall would last for the remainder of Sentence A. The court found this assumption unfounded given the statutory uncertainty and held that the judge was not entitled to inflate Sentence B to circumvent the statutory bar in section 265 or the repeal of section 116.

The court rejected the submission that increasing Sentence B was permissible to ensure a commensurate sentence under section 153(2), emphasizing that the bar in section 265 relates to the form of sentences rather than their effect, but that deliberate evasion of the statutory bar is impermissible. It also stressed that courts cannot disobey clear statutory provisions even if they produce unintended or unfortunate results.

Accordingly, the court concluded that the judge’s course of inflating Sentence B was unlawful.

Holding and Implications

The court quashed the increased 31-month sentence and substituted a 12-month sentence for Sentence B, effective from the date of the original sentence.

This decision directly affects the parties by reducing the Defendant's sentence for the new offence to the ordinary term the judge originally intended without inflation. The ruling confirms that sentencing courts cannot increase sentences to compensate for the statutory bar on consecutive sentencing and the repeal of return-to-prison powers. The court acknowledged the complexity and unintended consequences of the current legislative framework but emphasized that resolution of these issues lies with Parliament rather than the judiciary. No new legal precedent was established beyond clarifying the limits on judicial sentencing discretion in this statutory context.