Court of Appeal, Criminal Division (Lord Justice Schiemann, Mr Justice Owen and Judge Coles QC) 16 October 1998
WHEN PASSING a sentence on an offender who was already serving a sentence of imprisonment which, under the provisions of section 33(5) of the Criminal Justice Act 1991 made him a "long-term prisoner", the judge should be aware that by virtue of section 51(2) of the Act the new sentence would form part of the "long term", and would thus only attract release on licence after two-thirds of it had been served. The judge should also state expressly that the new sentence was to be consecutive to the existing sentence.
The Court of Appeal allowed the appeal of Dara Singh against a sentence of three years and ten months' imprisonment imposed following his conviction of possessing heroin with intent to supply and possession of cannabis.
The appellant was a serving prisoner, having been sentenced to 12 years' imprisonment in May 1991. In August 1996, almost 5g of heroin with a resale value of about pounds 1,000 and 1.2g of cannabis was found in his cell.
It was clear that the judge in sentencing the appellant wished to pass a sentence which would allow his existing sentence to run its course (another nine months) after which a consecutive sentence for the drugs offences would come into effect which would require the appellant's release on licence after two years if he were of good behaviour. He therefore passed a consecutive sentence of four years' imprisonment.
However, pursuant to section 33(1) of the Criminal Justice Act 1991, release on licence halfway through a sentence was only required if the sentence made the prisoner a "short-term" prisoner, and section 33(5) provided that a sentence of four years or more made a prisoner a "long- term" prisoner, in which case he was not obliged to be released on licence until he had served two-thirds of his sentence.
The judge then attempted to achieve his object by reducing the sentence to three years and ten months. That attempt also failed, however, because section 51(2) of the Act provided that consecutive terms of imprisonment and terms which were wholly or partially concurrent should be treated as a single term. Since the appellant was a "long-term" prisoner in respect of his earlier sentence of 12 years, any subsequent sentence when conjoined with that would come within the overall description of "long term". The appellant appealed against sentence.
Anthony Dalgleish (Registrar of Criminal Appeals) for the appellant.
Judge Coles said that the inevitable result of section 51(2) of the Act was that whatever a sentencing judge did in circumstances such as those in the present case, he could not prevent the sentence he passed being lumped with the earlier sentence, and for the purposes of release, forming part of the "long term".
In order to achieve the judge's object of a sentence which would require the appellant to serve two years' imprisonment consecutive to the nine months remaining of his original sentence, it was necessary to pass a consecutive sentence of three years, two-thirds of which would result in two years' actual custody.
Further, it was necessary for the judge in such circumstances to state expressly that any such sentence was to be consecutive to that already being served, since otherwise the effect of section 51(2) would be to join the new sentence and the old into a single combined sentence and thus have no effect at all.
It might be prudent for sentencing judges to note the form of words recommended by the Practice Direction (Sentencing)  2 All ER 144, namely that the new sentence was to be "consecutive to the total period of imprisonment to which you are already subject". Accordingly, the sentence finally passed by the judge would be quashed, and a total sentence of three years' imprisonment would be substituted, consecutive to the total period of imprisonment to which the appellant was already subject.Reuse content