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	England and Wales Court of Appeal (Criminal Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Criminal Division) Decisions >> McElwee [2007] EWCA Crim 1005 (18 April 2007) URL: http://www.bailii.org/ew/cases/EWCA/Crim/2007/1005.html Cite as: [2007] EWCA Crim 1005

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IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice Strand London, WC2
		Wednesday, 18 April 2007

1. LORD JUSTICE TUCKEY: On 14th February 2003 at Lewes Crown Court, the appellant Mark McElwee was sentenced to two years and nine months' imprisonment for burglary and handling stolen goods. He was released on licence from that sentence on 17th February 2004. Whilst on licence, on 25th May 2004, the appellant committed two further offences of burglary. As a result his licence was revoked and he was returned to custody. On 21st December 2004 in the Crown Court at Lewes before His Honour Judge Niblett, the appellant was sentenced as follows. He was returned to custody under the provisions of section 116 of the Powers of Criminal Courts (Sentencing) Act 2000 for a period of 417 days of the remaining sentence for the original offences and then, for the two burglaries which he had committed whilst on licence, he was sentenced to five years' imprisonment on each count, concurrent with one another but consecutive to the section 116 sentence.
2. He appeals against this sentence upon a reference by the Criminal Cases Review Commission on the basis that when the judge sentenced him for the original offence he failed to take into account the time already spent in prison following his recall to prison after his arrest for the two new burglaries.
3. What had happened was that the licence had been revoked on 26th May 2004 under the provisions of section 39 of the Criminal Justice Act. That had resulted in the appellant's return to prison. He was, however, released on 1st November 2004 because by then he had served three quarters of the original sentence. He was again released on licence and on strict bail conditions to appear for sentence for the two new burglaries. By 26th November 2005 he had breached those bail conditions and his licence was again revoked. He was not arrested until 18th December 2004. As a result of the breach of his licence and bail conditions 23 days were added to his original sentence expiry date.
4. The circumstances of the actual offences are not relevant for the determination of this appeal, but it appears that the sentencing judge was not informed of any of the chronology to which we have just referred and these facts were not referred to by this court when they considered and dismissed the appellant's original appeal against these sentences. But what is clear is that when the judge sentenced the appellant on 21st December 2004 he did not take into account any of the time spent by the appellant in prison following recall when ordering him to serve the remaining 417 days for the original offence.
5. The cases of Sharkey [2001] 1 Cr.App.R 409, Stocker [2003] EWCA Crim. 121 and Bingham [2004] EWCA Crim. 1865 show that in a case such as this time spent in custody following revocation of a licence should be taken into account and should be doubled to reflect the fact that one day spent in custody following the revocation of a licence was the equivalent of two days' return to custody under section 116 of the 2000 Act.
6. It is now clear that the appellant in fact spent 162 days in custody between 26th May and 21st December 2004 and so the remaining period of the original sentence, 418 days (as calculated by the review commission) fell to be reduced by those 162 days. But that calculation does not take account of the fact that the original sentence was extended by 23 days. We have had some argument about whether an adjustment should be made to reflect this. Miss Brennan has urged us not to make that adjustment, but accepts that as a matter of discretion we can do so. We think it is right to do so because it is the consequence of the fact that the appellant breached the licence and bail conditions upon which he was allowed to go free on 1st November 2004.
7. Taking account of this adjustment, the unexpired period of the first sentence is 441 days; the appellant has served the equivalent of twice times 162 days, that is to say 324 days, leaving a balance to be served of 117 days. We will therefore vary the order made by the judge under section 116 to a requirement for the appellant to serve 117 days before he serves the consecutive sentences imposed for the two new burglaries. To that extent this appeal is allowed.