Custodial sentence - Dangerous offenders - Robbery

R v McKenzie: Court of Appeal, Criminal Division (Lord Justice Richards, Mr Justice Calvert-Smith, Mr Justice Underhill): 29 September 2011

Section 225 of The Criminal Justice Act 2003, so far as material, provides: '(3C) The notional minimum term is the part of the sentence that the court would specify under section 82A(2) of the Sentencing Act (determination of tariff) if it imposed a sentence of imprisonment for public protection [or, in the case of a person aged at least 18 but under 21, a sentence of detention in a young offender institution for public protection] but was required to disregard the matter mentioned in section 82A(3)(b) of that act (crediting periods of remand).'

Section 240 of the act provides: '…(3) Subject to subsection (4), the court must direct that the number of days for which the offender was remanded in custody in connection with the offence or a related offence is to count as time served by him as part of the sentence.'

Section 82A of the Powers of Criminal Courts (Sentencing) Act, so far as material, provides: '(3)(b) The part of his sentence shall be such as the court considers appropriate taking into account (a) the seriousness of the offence, or of the combination of the offence and one or more offences associated with it; (b) the effect of any direction which it would have given under [section 240 of the Criminal Justice Act 2003] [(crediting periods of remand in custody) or under section 246 of the Armed Forces Act 2006 (equivalent provision for service courts)] [or under section 240A of that act of 2003 (crediting periods of remand on bail subject to certain types of condition)] if it had sentenced him to a term of imprisonment …'

The defendant was convicted of robbery and sentenced to imprisonment for public protection. The minimum term specified was four years, with a notional determinate term of eight years. Counsel for the defendant applied for a direction that 216 days spent in custody on remand be counted towards the sentence. The judge declined on the basis that section 225(3)(c) of the Criminal Justice Act 2003 precluded him from so doing. The defendant appealed against sentence.

The issue was whether the judge had erred in ruling that section 225(3)(c) of the Criminal Justice Act 2003 (the 2003 act) precluded him from counting towards the minimum term, the time spent by the defendant in custody on remand. The appeal would be allowed.

Section 225 of the 2003 act gave the court the power to impose a sentence of imprisonment for public protection. It did not in itself say anything in respect of time spent in custody on remand being counted towards the sentence imposed upon a defendant. The concept of minimum term in section 225 was concerned with whether the criteria for imprisonment for public protection had been met. However, section 82(a)(3)(b) of the 2000 act required the court, in fixing the minimum term, to take account of time spent in custody on remand (section 240 of the 2003 act).

In the instant case, the judge had erred in wrongly applying section 225(3)(c) of the 2003 Act. His reference to that section had been a red herring. The judge should have, pursuant to section 82(a)(3)(b) of the 2000 act and section 240 of the 2003 act, specified the minimum term as being four years less 216 days.

The minimum term would be quashed and substituted by a minimum term of 3 years and 149 days.

Laban Leake (assigned by the Registrar of Criminal Appeals) for the defendant.