![[2025] EWCA Crim 1112](https://backend.juristeca.com/files/emisores/logo_sHeHK8V.png){kind=logo}
Conclusions
Discussion and Resolution
The Solicitor General accepts that the judge's categorisation of the present offence and his treatment of the offender's previous convictions as a statutory aggravating factor was correct. So too was his statement of the principles to be applied where section 314 is in play. Furthermore, the Solicitor General expressly accepts that there were exceptional circumstances.
Paragraph 53 of the Reference states that:
"The imposition of the minimum term for the index offence would mean the offender spending a longer period in custody from the date of sentence in May 2025 than otherwise would be the case, had the offender been sentenced for the index offence in June 2024. As such, to impose the minimum term would lead to a longer custodial sentence than could properly be justified. The minimum term would, in those circumstances, result in a sentence which was not proportionate to the offending. The determination by the judge that there were 'exceptional circumstances' in this case - based on that analysis - was thus an appropriate and justified one for him to make."
That being so, the Solicitor General accepts that it was open to the judge to make an order for a conditional discharge (see paragraph 62 of the Reference). The Solicitor General also accepts that (a) it was a matter for the judge's discretion whether to make an adjustment on the basis of delay and (b) the judge was entitled to treat the delay in this case as unreasonable and to take it into account when sentencing the offender.
The impact of the delay is obvious. Paragraph 57 of the Reference states:
"Had the index offence been charged without the unreasonable delay, the offender could, and very likely would – had he admitted it as he went on to do at the PTPH in May 2025 - have been sentenced for the index offence at the same time as the other offences in the series. He pleaded guilty to all offences at the same stage of proceedings (i.e. at PTPH). All 7 offences were also subject to the same maximum – and minimum – sentence. The impact, if any, on the total overall sentence imposed in June 2024 of the index offence would, for all of the reasons referred to above, likely have been minimal, i.e. the index offence could also have attracted a concurrent sentence of 6 years’ imprisonment."
Because the Solicitor General accepts that the offences were all very similar and were evidently part of the same series, the Solicitor General recognises that:
"An appropriate approach to take in these circumstances would be to calculate the term the court would impose if it had dealt with the offences at the same time, make a reduction to reflect the sentence imposed previously… and then impose (without being formulaic) any remaining amount." (see paragraph 59 of the Reference)
At paragraph 61 of the Reference the Solicitor General also accepts that:
"The remark by HHJ Reid that any further prison sentence for the index offence would have to be 'cut down' was thus undoubtedly justified and correct."
Later, at paragraph 73 of the Reference, the Solicitor General submits:
"As the offender was then still serving the custodial element of the previous sentence, the judge could properly have ordered the new sentence to be served either concurrent with or consecutive to the previous sentence, taking into account the circumstances set out in the Totality guideline, and the general principles in that guideline."
In our judgment, if the present offence had been sentenced at the same time as the other burglary sentenced in June 2024, the overall outcome of that sentencing exercise would have been unchanged or possibly and at worst for the offender, subject to an entirely minimal upward adjustment. It may also be noted that the Solicitor General has not identified any material feature that can be shown to have been left out of account or any inappropriate future that has been brought into account by the sentencing judge.
In these circumstances, where it is accepted not merely that the judge had a discretion to make a conditional discharge and that (at paragraph 73 of the Reference), if he had resorted to a sentence of imprisonment not merely could he have cut it down but could have ordered the new sentence to be served either consecutively to or concurrently with the June 2024 sentence, we are unable to see any merit in this proposed Reference. If instead of fixing attention solely on the custodial sentence implied by the guideline, one looks to find a coherence in what the judge was trying to do, this sentence is reasonable and well within the scope of the judge's discretionary sentencing powers. Instead of superimposing another sentence of imprisonment upon that already imposed in June 2024 to no obvious advantage, this was a realistic and intelligent attempt to give the court additional scope for sentencing the offender if he reoffended over and above that which would have been implicit in a proportionate further custodial sentence of any duration concurrent or consecutive. We therefore refuse leave.