Factual and Procedural Background
The case concerns an offender who sought leave to appeal against a total sentence of three years' detention under section 91 of the Powers of Criminal Courts (Sentencing) Act 2000 for an offence of conspiracy to rob. The application for leave to appeal against sentence was referred to the full court by the Registrar.
On 6th January 2017, at Birmingham Crown Court, the offender pleaded guilty to the robbery offence and was sentenced on 5th May 2017 by His Honour Judge Thomas QC. The offender was one of six defendants involved in a conspiracy comprising 13 linked offences of robbery committed between 6th September 2016 and 5th October 2016. The offender was involved in seven of these offences. Other co-accused, aged between 15 and 17 at the time of sentencing, pleaded guilty to various offences and received custodial sentences of differing lengths.
The conspiracy ended following multiple arrests. The offenders were linked to the offences by CCTV footage, use of stolen bank cards, recovered stolen vehicles, and communications on a WhatsApp group discussing the robberies. The offences involved the use of weapons and caused physical injuries to victims, some of whom were attacked in their homes or in public.
The offender was remanded in local authority accommodation prior to sentencing and spent some time in youth detention accommodation. The sentencing judge initially set a custodial sentence of five years, reduced to three years considering the offender's guilty plea and certain personal circumstances. The offender's counsel later raised an issue regarding whether time spent in local authority accommodation before sentencing should count towards the sentence.
Legal Issues Presented
- Whether time spent by the offender in local authority accommodation prior to sentencing counts towards the custodial sentence imposed under section 91 of the Powers of Criminal Courts (Sentencing) Act 2000.
- Whether the sentencing judge erred in expecting that time spent in local authority care would count towards the sentence.
- Whether credit should be given for time spent under an electronically monitored curfew while remanded in local authority accommodation.
Arguments of the Parties
Appellant's Arguments
- The offender's counsel contended that the sentencing judge mistakenly assumed that the time spent in local authority accommodation would count towards the sentence, resulting in a longer effective custodial period than intended.
- It was argued that the offender had spent approximately 28 weeks in local authority care before sentencing, which should have been deducted from the custodial sentence.
- Additionally, the offender sought an extension of time to appeal based on the misunderstanding of how pre-sentence time was credited.
Respondent's Arguments
- The prosecution did not object to the three-year custodial sentence itself, acknowledging it was not manifestly excessive.
- They argued that time spent in local authority accommodation does not count as remand in custody under the relevant statutory definitions and therefore should not be deducted from the sentence.
- However, the prosecution agreed that credit should be given for time spent in youth detention accommodation and for time subject to an electronically monitored curfew while in local authority care.
Table of Precedents Cited
| Precedent |
Rule or Principle Cited For |
Application by the Court |
| R v Giga [2008] EWCA Crim 703 |
Clarification that the judge's sentencing decision concerns the overall length of sentence, not the time to be served, and that errors in explaining release provisions do not constitute grounds for appeal. |
The court applied this precedent to reject the appellant's submission that the sentence should be reduced due to mistaken expectations about time served, affirming that the sentence was appropriate and that the judge's explanation of release was not determinative of the sentence length. |
| R v D and H [2016] EWCA Crim 1807 |
Time spent under an electronically monitored curfew while remanded in local authority accommodation should be credited towards sentence. |
The court relied on this case to direct that credit be given for 98 days corresponding to the offender's electronically monitored curfew period while in local authority care, despite such remand not constituting custody under the statutory definition. |
Court's Reasoning and Analysis
The court carefully examined the statutory framework governing remand and sentencing credits, focusing on distinctions between remand in youth detention accommodation and remand in local authority accommodation. Section 242(2)(b) of the Criminal Justice Act 2003 defines remand in custody to include remand to youth detention accommodation under section 91(4) of the Legal Aid, Sentencing and Punishment of Offenders Act 2012, but excludes remand under section 91(3) to local authority accommodation.
This distinction is pivotal because only time spent remanded in custody as defined counts automatically towards the sentence under section 240ZA of the 2003 Act. The offender had been remanded under section 91(3) to local authority accommodation, which does not meet this definition, so the 28 weeks spent there do not count towards the sentence.
The court also considered an order purportedly directing that remand time count towards sentence but found it questionable in provenance and jurisdiction, and thus declined to rely on it.
The court noted that the sentencing judge gave full credit for the offender's guilty plea and appeared to anticipate the offender serving approximately half of the imposed sentence, suggesting the judge did not intend the local authority accommodation time to count.
Furthermore, the court distinguished this case from situations where judges explicitly misinform defendants about release arrangements, relying on the precedent in R v Giga to affirm that such errors do not invalidate the sentence or justify appeals.
However, the court accepted that the 14 days the offender spent in youth detention accommodation prior to local authority care do count towards the sentence, as do 98 days credited for the electronically monitored curfew imposed during local authority accommodation, pursuant to the principle in R v D and H.
Holding and Implications
The court GRANTED leave to appeal and ALLOWED the appeal in part to the extent of awarding credit for 112 days towards the sentence, comprising 14 days spent in youth detention accommodation and 98 days under electronically monitored curfew in local authority care.
The original custodial sentence of three years' detention under section 91 remains UNCHANGED. The court clarified that the 28 weeks spent in local authority accommodation without detention status do not count towards the sentence under the applicable statutory provisions.
No broader precedent was established beyond affirming the existing statutory interpretation and application of credit for time spent under electronically monitored curfew in local authority accommodation. The decision directly affects the calculation of time served for the offender but does not alter sentencing principles generally.