When combining a period of disqualification from driving with a custodial sentence the sentencing judge should give effect to the intention of Parliament that disqualification should be served when the offender is at liberty in the community.
Section 35A applies to an offender where a custodial sentence has been imposed together with a period of disqualification for the same offence. Subsections (2) and (3) provide that a period of "discretionary disqualification" must be ordered together with an "extension period". The discretionary period is the disqualification which is given for the offending. The extension period is linked to the period in custody. The extension period will in most cases be half the custodial sentence.
Section 35B applies where an offender is receiving a further custodial sentence for a separate offence, or is already in custody for another offence. The calculation under this provision is less mechanical and is intended, by virtue of sub-section (3), to ensure that the period of disqualification is not concurrent to a custodial sentence for another offence.
The Court helpfully set out a checklist of the correct approach at paragraph 31:
Step 1 ¬ Does the court intend to impose a "discretionary" disqualification under section 34 or section 35 for any offence?
YES - go to step 2
Step 2 - Does the court intend to impose a custodial term for that same offence?
YES - section 35A applies and the court must impose an extension period (see section 35A(4)(h) for that same offence and consider step 3).
NO - section 35A does not apply at all - go on to consider section 35B and step 4
Step 3 - does the court intend to impose a custodial term for another offence (which is longer or consecutive) or is the defendant already serving a custodial sentence?
YES - then consider what increase ("uplift") in the period of "discretionary disqualification" is required to comply with section 35B(2) and (3). In accordance with section 35B(4) ignore any custodial term imposed for an offence involving disqualification under section 35A.
Discretionary period + extension period + uplift = total period of disqualification
NO - no need to consider section 35B at all
Discretionary period + extension period =total period of disqualification
Step 4 - does the court intend to impose a custodial term for another offence or is the defendant already serving a custodial sentence?
YES - then consider what increase ("uplift") in the period of "discretionary disqualification" is required to comply with section 35B(2) and (3).
Discretionary period + uplift = total period of disqualification.
The Court also clarified other issues in the case around the use of interim disqualifications where a defendant was in custody, and the relevance or otherwise of qualifying curfews and periods served on remand.
Sentencing under Section 35A is for the specific offence for which both a sentence of custody and an order of disqualification is made. In ordinary cases an arithmetical approach is preferred so as to give effect to the intention of Parliament.
The Court of Appeal anticipates that sentencing courts will adjust or uplift the period of disqualification under 35B in a way which ensures that the full period of disqualification is served outside custody.
All bar one of the appeals was dismissed.
3 June 2016