REGINA v Phillips

Factual and Procedural Background

The appeals concern prisoners recalled to custody after committing further offences while on licence for existing sentences. When an offender is recalled and their licence revoked, statutory provisions under the Criminal Justice Act 2003 apply, affecting how subsequent sentences are served.

Specifically, section 265 prohibits consecutive sentences for the new offence running after the existing sentence, and section 240ZA restricts credit for time spent on remand if that remand overlaps with recall custody. The appellants argue that delays in sentencing caused them to lose credit for time spent on remand and resulted in sentences that are wrong in principle or manifestly excessive.

The court had previously considered whether sentencing courts have discretion to reduce sentences to account for time on remand overlapping recall custody, confirming a residual discretion to address injustice but emphasizing it cannot override statutory provisions.

The appeals involve multiple appellants. One appellant, referred to here as Phillips, was sentenced for offences committed while recalled on licence, with significant delay between the offence, charge, and sentencing. Other appellants, O'Brien and Kalychurn, were sentenced for conspiracy to commit aggravated burglary after pleading guilty, but faced delays between plea and sentence due to adjournments pending co-defendant trials.

Legal Issues Presented

1. Whether sentencing courts have discretion to reduce otherwise appropriate sentences to account for time spent on remand that overlaps with recall custody but does not count as time served under section 240ZA of the Criminal Justice Act 2003.
2. Whether delay in sentencing amounts to a breach of the reasonable time requirement under Article 6 of the European Convention on Human Rights and if such delay justifies sentence reduction.
3. Whether failure to apply such reductions results in sentences that are wrong in principle or manifestly excessive.
4. Whether disparities in sentences between co-defendants, arising from differences in recall status and statutory treatment of remand time, amount to injustice.

Arguments of the Parties

Appellants' Arguments

• Delay in investigation, charging, and sentencing caused appellants to lose credit for time spent on remand that overlapped with recall custody, effectively extending their detention beyond what would have been served if sentenced promptly.
• Sentencing courts ought to reduce sentences to reflect this delay and the inability to receive credit for remand time under section 240ZA.
• In one case, the appellant argued that the sentence failed sufficiently to give effect to section 265 of the Criminal Justice Act 2003, which prohibits consecutive sentences for new offences committed while on licence.
• Appellants contended that the delay was not their fault and that failure to reduce sentences accordingly resulted in manifestly excessive punishment.
• In the cases of O'Brien and Kalychurn, it was argued that the delay between plea and sentence was unfair, leading to a disparity in actual time served compared to co-defendants not on recall, thus amounting to injustice.

Respondent's Arguments

• The statutory scheme enacted by Parliament clearly intends that time spent on remand overlapping with recall custody does not count as time served, and sentencing courts do not have an obligation to mitigate this by reducing sentences.
• The discretion identified in prior cases is residual and intended only to correct clear injustice, not to circumvent statutory provisions.
• Delays in sentencing, unless excessive and amounting to a breach of Article 6 rights, do not automatically justify sentence reduction.
• Disparities in sentences between appellants and co-defendants reflect legitimate differences in circumstances, such as recall status, and do not constitute unfairness or injustice.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
R v Costello [2010] EWCA Crim 371	Section 265 of the Criminal Justice Act 2003 prohibits consecutive sentences for offences committed while on licence.	Confirmed that sentences for new offences cannot run consecutively to existing sentences when recalled on licence and cannot be inflated unjustly.
R v Kerrigan & Walker [2014] EWCA Crim 2348	Residual discretion exists for sentencing courts to reduce sentences to correct injustice caused by delay or other factors but cannot override statutory provisions.	Reaffirmed the limited discretion to mitigate injustice but emphasized Parliament's clear intention regarding remand time credit.
Attorney General's Reference (No 79 of 2009) [2010] EWCA Crim 338	Consideration of delay and its impact on sentencing within the context of justice and Convention rights.	Referenced as authority on the importance of delay in sentencing and its potential impact on justice.
R v Shaw [2011] EWCA Crim 98	Allowance for delay in bringing a case to trial as part of sentencing considerations.	Used to illustrate that delay may justify sentence reduction, but not for the purpose of crediting remand time overlapping recall custody.
R v Wood [2011] EWCA Crim 1854	Similar approach to Shaw regarding delay in proceedings and sentencing.	Supported the principle that delay may be relevant to sentencing but does not entitle credit for remand overlapping recall.
R v Tolbert (3 February 2015)	Clarification on the exercise of residual discretion in sentencing regarding remand time and recall.	Reinforced that discretion is residual and not a formulaic right to mitigation for statutory effects.

Court's Reasoning and Analysis

The court began by outlining the statutory framework under the Criminal Justice Act 2003, emphasizing that section 265 prohibits consecutive sentences when an offender commits a further offence while on licence, and section 240ZA removes the court's discretion to credit remand time overlapping recall custody against a sentence.

The court acknowledged the residual discretion identified in R v Kerrigan & Walker allowing judges to reduce sentences to address injustice caused by delay or other exceptional circumstances. However, this discretion is limited and cannot be used to undermine clear statutory provisions.

Applying these principles to the facts, the court found that the sentencing judge had properly exercised discretion in Phillips' case by reducing the sentence to reflect delay, but that the appellant was not entitled to a greater discount or to credit for time spent on recall for an unrelated offence. The court rejected the argument that the appellant should have been sentenced to ensure release concurrent with the end of the existing sentence, emphasizing that no entitlement to such mitigation exists.

Regarding the appeals of O'Brien and Kalychurn, the court found that the delay between plea and sentencing was not excessive and did not breach Article 6 rights. The court further rejected the claim of injustice arising from disparity with co-defendants, noting that differences in recall status and statutory treatment justified the different outcomes.

The court underscored the primacy of Parliament's intention in creating the statutory scheme and declined to interfere with the sentencing judge's discretion, finding no error in principle or manifest excessiveness in the sentences imposed.

Holding and Implications

The court granted leave to appeal in the case of Phillips but ultimately DISMISSED the appeal. Similarly, the appeals of O'Brien and Kalychurn were also DISMISSED.

The direct effect is that the sentences imposed stand as lawful and appropriate, with the statutory provisions governing recall and remand time credit upheld as intended by Parliament. The court confirmed that the residual discretion to mitigate delay-related injustice is limited and cannot be used to circumvent statutory rules. No new precedent altering the statutory scheme was established.